Introduction Public International Law

1. WHAT IS PUBLIC INTERNATIONAL LAW? International law comprises a system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations, the Arab League and the African Union. It operates alongside international diplomacy, politics and economics.

2. WHAT IS MEANT BY THE TERM “SOVEREIGNITY”?

Sovereignty is the exclusive right to exercise supreme political authority over a defined territory (land, airspace and certain maritime areas such as the territorial sea) and the people within that territory. No other State can have formal political authority within that State. Therefore, sovereignty is closely associated with the concept of political independence.

During the period of Western colonial expansion new territories and islands were subject to claims of sovereignty by discovery and occupation. Sovereignty could also be transferred to another State by conquest (use of force) or by cession where the sovereignty over the territory would be ceded by treaty from one State to another.Since a State has sovereignty over its territory, the entry into its territory by the armed forces of another State without consent is a prima facie breach of international law. Among the attributes of sovereignty is the right to exclude foreigners from entering the territory, which is traditionally referred to as the right to exclude aliens. Since a State has sovereignty within its territorial sea (with some exceptions such as the right of innocent passage ), it has the exclusive authority to exercise police power within its territory sea. For example, if foreign ships are attacked by “pirates” in the territorial sea of a State, the only State that can exercise police power and arrest the pirates in the territorial sea is the coastal State.

3. WHAT ARE THE SOURCES OF INTERNATIONAL LAW?

The sources for international law have been enumerated in Article 38(1) of the Statute of the

International Court of Justice. It provides that while the court is making its decision, it has to keep in

mind that international law stems from the following areas, since it is obliged to make decisions “in

accordance with international law”.

(a) International conventions, whether general or particular, establishing rules expressly recognized by

the contesting states;

(b) International custom, as evidence of a general practice accepted as law;

(c) The general principles of law recognized by civilized nations;

(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly

qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

 

Keeping this Article in mind, let us take a detailed look at the different ways in whichInternational Law

is generated:

 

1.     Customary Law: The principle of Customary Law basically dictates that a dispute should be

resolved by referring to the Customs of the land, so that the customary practices of different nations are

respected and adhered to. However, the threshold for proving a law as customary is quite high, since it

should have “evidence of a general practice accepted as law”. In order to reach that threshold, the court

must consider both the “material facts” and the “opinio juris” of states.

·  Material facts: This is concerned with the way in which the Customary law is applied in the Country

concerned. The duration for which the practice has subsisted, its consistency, the repetition of its use

and the generality of the practice are all considered subjectively in determining the authenticity and

applicability of a customary practice. However, each of those standards are exclusive to each other, and

as reiterated by different Courts in several cases, all of them need not be fulfilled in each case in order

to determine the validity of the practice. In some cases, like the Continental Shelf case, the Judges

relied more on ideas of Justice and Equality more that the other factors.

· Opinio Juris: This is concerned more with the Jurisprudence of the country whose custom is being

considered. Basically, this requirement is to ensure that even if a practice is customary, the Country

carrying out that practice must have been consciously enforcing/ allowing that practice. This has been

seen in the Lotus case, where France was arguing that since countries had abstained from instituting

criminal proceedings in the past for the matter that was in question, that is now the customary practice.

However, the Court held that since there was no clear evidence that the abstention was consciously

made, it could not be held to be customary law.

Thus, customary law has two criteria – There should be clear evidence of the practice in question being

followed, and there should also be evidence to show that thecountry in question was consciously

following it.

 

2.     Treaties: This is another source for international law which plays a very big role. This is because

the term treaty means and includes Conventions, International Agreements, Pacts, General Acts,

Charters, Statutes, Declarations as well as Covenants.  There are two kinds of treaties:

·      Law making treaties: These treaties are ones that are intended to have general relevance as to the

position of law in particular fields. They are agreements by some or several states whereby they debate

about different fields in international law so as to broaden the scope and to give clarity to a particular

subject. It is considered as a source of law since it reflects the view of several states concerning

particular topics. The Genocide convention and the Antarctic Treaty are examples of this kind of a

treaty.

·      Treaty contracts: These are basically agreements between two countries, which are in the nature of

a contract between two parties; they are enforceable, and pertain mostly only to the contracting parties.

However, it can be regarded as a source of law in certain situations. For example, if a series of treaties

between two or three countries all have the same underlying principle, then that principle can be

regarded as the custom of the land.

 

3.     General principles of law: Another source of law mentioned in Article 38 are general principles of

law. This is a very important requirement as a source of law,since International law is not always very

specific or developed. Therefore, general principles of law would be very helpful in determining

international law, since there is already strong proof of its validity and its usage. Onesuch principle that

was brought out in the Genocide convention was the principle of Res Judicata, which was used to

ensure that decisions of international courts are final and binding. Another such principle is that of

pacta sunt servanda, which means that international agreements are binding on the parties who enter

into them. Thus, they are a very important source of law.

4.     Principles of Equity: Equity is a very important source if international law, since itallows courts to

sometimes look past the customary laws in order to make anequitable decision. This was observed in

the Continental Sea Shelf case, where the Court looked past the Customary drawing of nautical lines

and instead looked at the most equitable and just option available.

5.     Judicial decisions: Article 38, mentioned above, lists judicial decisions as a subsidiary method of

determining law. Further, Article 59 says that judicial decisions will have no binding power of

precedent. However, judges sometimes interpret a whole concept that is then used by others as the

binding law onpoint. In this way, it can be used as a source of law. For example, in the Fisheries case,

which set out the criteria for determination of baselines for the measurement of territorial sea. This

decision was later used by the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.6.     Writers: Writers also play a big part of determining sources of law since renowned work on jurisprudence often cited by States in their presentation of claims, national law officials, the various international judicial and arbitral bodies, and the judges of municipal courts.

3. WHAT IS THE SIGNIFICANCE OF ARTICLE 2(7) OF THE UN CHARTER?

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.It is principle of non-intervention of the United Nations in internal affairs of States under Article 2 (7) of the Charter

4. WHAT IS THE DIFFERENCE BETWEEN INTERNATIONAL LAW AND NATIONAL LAW? National law is concerned primarily with the legal rights and duties of legal persons (individuals and companies) within a body politic – the state or similar territorial entity. National law commonly is derived from a legal superior (e.g. a parliament or person with legislative power), recognised as legally competent by the society to whom the law is addressed (e.g. in a constitution), and in situations where the governing power has both the authority and practical competence to make and enforce that law.International law comprises a system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations, the Arab League and the African UnionIt is concerned with the rights and duties of the states themselves. In their relations with each other, there is no relationship of legal superiority. States are legal equals and the legal system, which regulates their actions between themselves, must reflect this.International law is a legal system must facilitate the interaction of these legal equals rather than control or compel that national law exerts over its subjects

5. HOW WOULD YOU RESPOND TO THE CLAIM THAT PIL IS NOT REALLY LAW? Of course, PIL is a law, when think about what ‘law’ is, and what its purpose is, there is not one measure and not one perfect model. PIL might be more prescriptive and less permissive however, that does not mean that it ceases to be law. The story of international law and the international legal system, like so many other legal systems, is one of achievement and disappointment. So, in much the same way that we would not suggest that the law of the UK is somehow ‘not law’ because it is

currently proving impossible to control cross-border internet crime, it does not necessarily follow that international law should be dismissed as a system of law because there are international actors that seem determined to ignore it.

International law comprises a system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations, the Arab League and the African Union. The rules of international law are created primarily by states, either for their own purposes or as a means of facilitating and controlling the activities of other actors on the international plane.Rules of international law cover almost every facet of inter-state and international activity. There are laws regulating the use of the sea, outer space and Antarctica. There are rules governing international telecommunications, postal services, the carriage of goods and passengers by air and the transfer of money. International law is a primary tool for the conduct of international trade. It is concerned with nationality, extradition, the use of armed force, human rights, protection of the environment, the dignity of the individual and the security of nations. In short, there is very little that is done in the international arena that is not regulated by international law.International law is the vital mechanism without which an interdependent world could not function. In this sense, international law facilitates the functioning of the international community, of which we are all a part and on which we all depend. Modern international law also seeks to control states by inhibiting or directing their conduct both in their relations with other states (e.g. the law prohibiting the use of armed force to settle disputes) and in relation to individuals, both individuals of other states (e.g. issues concerning the exercise of criminal jurisdiction) and its own nationals (e.g. the law of human rights).Nevertheless, there have been incidents in International Law where a state may decide to forfeit legality in favour of self-interest, expediency or ‘humanity’, like the denial of procedural and substantive rights to those being held in detention by the USA at Guantanamo Bay during the Bush Presidency, which constituted a violation of the international law of human rights worthy. However, these incidents should be contrasted to (1) the successful UN-led efforts to bring self-determination and then independence to East Timor in 2002, (2) the groundbreaking establishment and operation of the International Criminal Court responsible for prosecuting individuals for violation of fundamental international human rights, (3) the protection of civilian populations during the Libyan civil war of 2011 and (4) the continuing impact of the International Court of Justice in regulating states’ use of the world’s oceans and their natural resources.

The members of the international community recognise that there exists a body of rules binding upon them as law. States believe international law exists. When Iraq invaded Kuwait in 1990, or earlier when Tanzania invaded Uganda in 1978/79, the great majority of states regarded the action as ‘unlawful’, not merely ‘immoral’ or ‘unacceptable’.(a) International law is practised on a daily basis in the Foreign Offi ces, national courts and other governmental organs of states, as well as in international organisations such as the United Nations and the Organisation of American States. These organisations and their members accept that they are ‘legally bound’ to behave in a certain way and will pursue claims against each other alleging a ‘breach’ of international law.(b The States –the most important of the subjects of international law – do not claim that they are above the law or that international law does not bind them. When Iraq invaded Kuwait it did not claim that the law prohibiting armed force did not apply to it or was irrelevant. Rather, Iraq argued that international law ‘justified’ its action; in other words, that it was ‘legal’ by reference to some other rule of international law. This is powerful evidence that states follow rules of international law as a matter of obligation, not simply as a matter of choice or morality. If this were not so, there would be no need for states to justify their action in legal terms when they departed from a legal norm.(c) The majority of international legal rules are consistently obeyed. Of course, there will be occasions when the law is ignored or flouted, just as there will be murder and theft in national law. The occasions when a state disregards its treaty or customary law obligations are but a small fraction of the occasions on which those obligations are observed.(d) It is a function of all legal systems to resolve disputed questions of fact and law. International law

does this and, because it cannot not be called a law because it only has a limited number of developed legal institutions. The well-established European Court of Human Rights, the War Crimes Tribunals for Bosnia, Rwanda and Somalia and the International Criminal Court are good examples.It is sometimes said that international law is not "true" law becaus eit is not generally enforceable. For example, no formal enforcement action taken against the USA after its illegal invasion of Grenada and no formal condemnation of Israel for invading Lebanon in 2006. Unlike national legal systems, were it is assumed that the law will be enforced. However, this argument could be considered as flawed as the system of law does not depend on the chances of effective enforcement. Secondly, it is not true that international law is not enforceable or effective. While international law has never been wholly dependent on a system of institutionalised enforcement, the absence of a ‘police force’ or compulsory court of general competence does not mean that international law is impotent.

It would be a mistake to conclude that international law is a perfect system. There is much that could be reformed and enhanced. There is a general lack of institutions; the content of the rules of international law can be uncertain; states may elect to ignore international law when their vital interests are at stake; states are able to violate basic rules, such as the prohibition of violence without fear of being coerced.

6. WHAT ARE THE SOURCES OF INTERNATIONAL LAW?

Article 38(1) of the Statute of the International Court of Justice is widely recognized as the most authoritative and complete statement as to the sources of International Law. The sources of International law can be divided into 2 main categories, primary sources and secondary sources. (a) International conventions, whether general or particular, establishing rules expressly recognized by

the contesting states;

(b) International custom, as evidence of a general practice accepted as law;

(c) The general principles of law recognized by civilized nations;

(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly

qualified publicists of the various nations (academic writers), as subsidiary means for the

determination of rules of law.

Custom should constitute evidence of a general practice accepted as law. Thus, there are 2 basic

elements which make-up a custom, the first element is the actual behaviour of states and the second

element is the psychological or subjective belief that such behaviour is law. They are also referred to as

the actual practice of states or material fact and the opinion juris of states.

In the Asylum case, the ICJ declined to order Peru to comply with a customary rule as the court felt

that the custom in question was not a ‘constant and uniform usage practiced by the States in question'.

For it to be custom, the Court held that the custom must have led to a right for one state and a duty

upon the other state. In this case, Colombia had granted asylum to Haya De La Torre, a Peruvian,

however, Peru refused to issue a safe conduct to permit Torre to leave the country. The custom in

question failed to meet the criteria of a ‘ constant and uniform usage practiced by the States in

question’ as it was a regional custom pertaining only to Latin America.

In the Anglo-Norwegian Fisheries case, the court refused to hold a particular method of measuring the

breadth of the territorial sea as it felt that the actual practices of states did not justify the creation of

such a custom. That is, there was ‘insufficient uniformity of behavior.’

7. WHAT IS THE INTERNATIONAL COURT OF JUSTICE (ICJ)?

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946.The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America).The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

Jus ad bellum (Latin for "right to war") is a set of criteria that are to be consulted before engaging in war, in order to determine whether entering into war is permissible; that is, whether it is a just war.Jus in bello, concerns with whether a war is conducted justly (regardless of whether the initiation of hostilities was just).

8. WHAT ARE THE SOURCES OF INTERNATIONAL LAW? ARE MUNICIPAL LEGAL SYSTEMS OBLIGED TO RECOGNIZE THESE SOURCES WHILE EXERCISING A) DOMESTIC JURISDICTION, B) EXTRATERRITORIAL JURISDICTION? ELUCIDATE WITH CASE LAWS AND EXAMPLES.

The sources for international law have been enumerated in Article 38(1) of the Statute of the

International Court of Justice. It provides that while the court is making its decision, it has to keep in

mind that international law stems from the following areas, since it is obliged to make decisions “in

accordance with international law”:

 

(a) International conventions, whether general or particular, establishing rules expressly recognized by

the contesting states;

(b) International custom, as evidence of a general practice accepted as law;

(c) The general principles of law recognized by civilized nations;

(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly

qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

 

Keeping this Article in mind, let us take a detailed look at the different ways in whichInternational Law

is generated:

 

1.     Customary Law: The principle of Customary Law basically dictates that a dispute should be

resolved by referring to the Customs of the land, so that the customary practices of different nations are

respected and adhered to. However, the threshold for proving a law as customary is quite high, since it

should have “evidence of a general practice accepted as law”. In order to reach that threshold, the court

must consider both the “material facts” and the “opinio juris” of states.

·      Material facts: This is concerned with the way in which the Customary law is applied in the

Country concerned. The duration for which the practice has subsisted, its consistency, the repetition of

its use and the generality of the practice are all considered subjectively in determining the authenticity

and applicability of a customary practice. However, each of those standards are exclusive to each other,

and as reiterated by different Courts in several cases, all of them need not be fulfilled in each case in

order to determine the validity of the practice. In some cases, like the Continental Shelf case, the

Judges relied more on ideas of Justice and Equality more that the other factors.

·       Opinio Juris: This is concerned more with the Jurisprudence of the country whose custom is

being considered. Basically, this requirement is to ensure that even if a practice is customary, the

Country carrying out that practice must have been consciously enforcing/ allowing that practice. This

has been seen in the Lotus case, where France was arguing that since countries had abstained from

instituting criminal proceedings in the past for the matter that was in question, that is now the

customary practice. However, the Court held that since there was no clear evidence that the abstention

was consciously made, it could not be held to be customary law.

Thus, customary law has two criteria – There should be clear evidence of the practice in question being

followed, and there should also be evidence to show that thecountry in question was consciously

following it.

 

2.     Treaties: This is another source for international law which plays a very big role. This is because

the term treaty means and includes Conventions, International Agreements, Pacts, General Acts,

Charters, Statutes, Declarations as well as Covenants.  There are two kinds of treaties:

·      Law making treaties: These treaties are ones that are intended to have general relevance as to the

position of law in particular fields. They are agreements by some or several states whereby they debate

about different fields in international law so as to broaden the scope and to give clarity to a particular

subject. It is considered as a source of law since it reflects the view of several states concerning

particular topics. The Genocide convention and the Antarctic Treaty are examples of this kind of a

treaty.

·      Treaty contracts: These are basically agreements between two countries, which are in the nature of

a contract between two parties; they are enforceable, and pertain mostly only to the contracting parties.

However, it can be regarded as a source of law in certain situations. For example, if a series of treaties

between two or three countries all have the same underlying principle, then that principle can be

regarded as the custom of the land.

 

3.     General principles of law: Another source of law mentioned in Article 38 are general principles of

law. This is a very important requirement as a source of law,since International law is not always very

specific or developed. Therefore, general principles of law would be very helpful in determining

international law, since there is already strong proof of its validity and its usage. Onesuch principle that

was brought out in the Genocide convention was the principle of Res Judicata, which was used to

ensure that decisions of international courts are final and binding. Another such principle is that of

pacta sunt servanda, which means that international agreements are binding on the parties who enter

into them. Thus, they are a very important source of law.

4.     Principles of Equity: Equity is a very important source if international law, since itallows courts to

sometimes look past the customary laws in order to make anequitable decision. This was observed in

the Continental Sea Shelf case, where the Court looked past the Customary drawing of nautical lines

and instead looked at the most equitable and just option available.

5.     Judicial decisions: Article 38, mentioned above, lists judicial decisions as a subsidiary method of

determining law. Further, Article 59 says that judicial decisions will have no binding power of

precedent. However, judges sometimes interpret a whole concept that is then used by others as the

binding law onpoint. In this way, it can be used as a source of law. For example, in the Fisheries case,

which set out the criteria for determination of baselines for the measurement of territorial sea. This

decision was later used by the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.6.     Writers: Writers also play a big part of determining sources of law since renowned work on jurisprudence often cited by States in their presentation of claims, national law officials, the various international judicial and arbitral bodies, and the judges of municipal courts.Article 38 (1) of Statute of International Court of Justice is the most comprehensive legislation for the sources of international law. The Article is segregated into two distinct sources. The primary source which recognizes international conventions, customs and general principles of law as exclusive law creating processes and the secondary source which establishes judicial decisions and academic writings as law determining agencies. However, the article is silent about the peremptory norm (jus cogens) which is the fundamental principle of international law.CUSTOMS

The essence of custom is that there should be evidence to the fact that the general practice should be adhered to as law. Thus, the basic elements that constitute a custom are the material facts (the behavior of states) and the subjective belief (opinion juris) that the behavior of states amounts to law. For determining the material facts, the International Court of Justice has opined that customary rule sought to be acknowledged as law has to be in accordance with a constant and uniform usage practiced by the state and observed in the Anglo-Norwegian Fisheries case that, some degree of uniformity amongst state practices was essential before a custom would be recognized as law. However, in Nicaragua v. United States, the court expounded further that such uniformity of state practice as prescribed in the Anglo-Norwegian Fisheries case need not be in absolute rigorous conformity. As far as the subjective belief is concerned, the Court of International Justice in the Lotus case discussed when state practice would constitute customary law. The court was of the opinion that, although jurisdiction for crimes committed on the high seas were tried in those states whose flag the ship hoisted it was elucidated that state practice was to abstain from holding the criminal trial in states other than the ones whose flag the ship hoisted and that there was no obligation to do the same. Hence, without the essential ingredient of obligation, state practice remained a mere practice and was not recognized as customary law.INTERNATIONAL CONVENTIONS

Are written instruments by virtue of which states bind themselves together legally and establish a relation between themselves. Parties to the instrument are obligated to carry out the conditions and arrangements that are agreed upon. The obligatory nature is based on the international law principle of pacta sunt servanda (agreements are binding). International Conventions are divided into: law making treaties and treaty contracts. Like a contract, law making treaties set down a series of propositions that establish new rules and guidelines for future international conduct and are binding on all members of the contract. In contrast, treaty contracts, are not law making instruments in themselves as they are between a limited numbers of states.GENERAL PRINCIPLES OF LAW

Where the law is non liquet the judges deduce a rule by drawing an analogy from the existing rules to guide the legal system and fill the lacunae in law. PEREMPTORY NORM (jus cogens)Fundamental principles of International law are accepted in the international community of states as a norm from which derogation is impermissible. Some instances of these norms are outlawing of genocide and protection from slavery.

b).The broader issue that needs to be addressed is whether municipal legal systems are obliged to take into account these sources of law while exercising jurisdiction.

DOMESTIC JURISDICTION

Owing to the sovereign nature of states, there is a presumption that states should be supreme within their own internal territorial frontier and other states should not interfere in its domestic affairs. However, influence of international law can be realized now, in areas of exclusive jurisdiction of states. For instance, treatment given to a national of a country has to now be in conformity to international human rights regulations. The Anglo-Norwegian Fisheries case, discusses the limit on exercise of domestic jurisdiction, where it was stressed that, although the costal state was competent to act on its territorial water unilaterally, the validity of its action with regards to other states depends upon international law.

EXTRATERRITORIAL JURISDICTION

States exercise universal jurisdiction/extraterritorial jurisdiction where, the crimes committed are of universal concern and each State has an interest to prosecute such crime. The validity of extraterritorial jurisdiction is derived from jus cogens. In the Pinochet case, the House of Lords, prosecuted the head of Chile on the grounds of torture committed by him and invoked universal jurisdiction. However, diplomatic immunity, can be seen as an exception to rule of universal jurisdiction. In the Belgian Arrest Warrant case, where the Belgian court issued an arrest warrant against the Foreign minister of Congo for inciting racial hatred. The International Court of Justice was of the opinion that Belgium had failed to respect the immunity enjoyed by the foreign minister under international law. The arrest of the Minister of Foreign Affairs in an international state would have prevented him or her from exercising functions of office.

1. a) Assess the concept of customary law through the Nicaragua Merits Case, Nuclear Weapons Case and the Anglo Norwegian Fisheries case.b) If you were to redraft Article 38 of the ICJ Statute, how would you embark on it?

Customary Law, which is based on state practice and opinion juris, at many instances creates uncertainty as to establish certain state practice, holding the value of law. The jurisprudence evolved on this issue has made an attempt to address some of these issues.

ANGLO NORWEGIAN FISHERIES CASE This case came before the International Court of Justice to decide whether Norway’s method of drawing a baseline to measure its territorial sea was legal and in conformity with existing state practice in customary law. The court dealt with this issue by observing that although the ten-mile rule was adopted by certain states in their national law and treaties, other states did not adhere to this rule. Thus, the ten-mile rule did not acquire the authority of a general rule of international law. Norway from 1869, had followed, without contention from other states, certain methods of delimitation that it considered a part of its legal framework. The method had both the elements of state practice and opinion juris enough to establish it as customary law and no objection by other states to such state practice was enough to indicate that the method was not ‘contrary to international law’.

NICARAGUA CASE

In this case which involved military and paramilitary activities conducted by, or with the aid of, United States against Nicaragua, the important issues of customary law dealt by the International Court of Justice were –

i. The competence of ICJ to give its decision based on customary law in the face of existing Vandenberg convention.

ii. The connection between customary law and treaty law.iii. Elements of customary law.iv. Prohibition of use of force as being a jus cogens norm.

COMPETENCE OF ICJ TO DECIDE THE CASE

While dealing with the first issue, the court was of the opinion that multilateral treaty reservations did not preclude the Courts from determining cases relying on customary international law. The Court reasoned that customary international law and treaty law existed independent of each other.CONNECTION BETWEEN CUSTOMARY LAW AND TREATY LAW

Addressing the second issue the United States raised the contention that when treaty law supervened customary law when both the sources of law contained the same content. Their rational behind the argument was that, principles which existed in the UN Charter ruled out the possibility of existence of similar rules in customary law, either because such rules were incorporated in the Charter or because customary rules were influenced by adoption of rules with similar content.In response to this contention, the court disagreeing with the United States observed that although principles of customary law are codified into treaties, both the sources of law coexist, this is an essential element, for when a treaty ceases to apply to members the customary law prevails and continues to bind members. To assert this principle the Court relied on the North Sea Continental Shelf Case which laid down the same principle of coexistence of customary law and treaty law. The court further elucidated that Article 51 which did not provide for ‘inherent right’ of self-defense in case of armed conflict, and self-defense not being a part of treaty law, did not disable states from invoking such a right. It was therefore not feasible to view treaty law as supervening customary international law. The Court concluded by stating:“The essential consideration is that both the Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations. The differences which may exist between the specific content of each are not, in the Court’s view, such, as to cause a judgment confined to the field of customary international law to be ineffective or inappropriate.”ELEMENTS OF CUSTOMARY INTERNATIONAL LAW

To deal with this issue the court expounded that both the subjective element (opinion juris) and the objective element (state practice) would be considered as essential elements for the formation of customary law. The court further elucidated that, for a practice to be established as customary law it was not necessary for it to be in absolute rigorous conformity with the rule. The practice had to be generally consistent with the rule. In cases where state conduct was inconsistent with the rule, the breach would not be treated as recognition of new rule but as a breach of the existing rule.PROHIBITION OF USE OF FORCE (jus cogens)The court held that prohibition on use of force could be found in customary international law as jus cogens norm, which could also be found in Article 2 (4) of the UN Charter which prohibits the threat or use of force against another State.

b) Article 38 being one of the most extensive articles on sources of law has two drawbacks:i) It does not state that treaty law and customary law coexist; andii) There is no provision for jus cogens being norms which are binding on all members of the world.Thus, if the article had to go under a redraft, these amendments would be crucial to give further meaning to the Article.

Statehood, Recognition & the Relationship between International and National law

In the international legal system, no entity can impose international law upon a state. States are the primary actors in PIL and the concepts of state “sovereignty” and “statehood” are at the heart of the international legal system. No one can impose international law upon states. States must themselves give their consent to be bound by international law (usually through the ratification of international treaties). The only exception to this rule is customary international law (to be examined in week 5). PIL is, therefore, traditionally a state centric discipline. Although we will see, “non-state actors” (NSA) are playing an increasingly important role in PILRecognition of a state or govt, is a legal acknowledgment of a factual state of affairs. Since recognition is a political act, it is reserved to the executive branch of the government.Recognition - 2 theories 1)Constitutive theory - act of recognition by other states that creates a new state and endows it with legal personality and not the process by which it actually obtained independence. A shortfall of this theory is that if a state does not recognise a state, then that state would not be bound by international law, rules of non-aggression and non-intervention etc. USA did not recognise the Peoples Republic of China for a long time. This theory of recognition is imp. when a terrorist sets up a state, the new entity of govt. will be insecure and it is in this context that recognition plays a vital role. Another factor which supprots the constitutive interpretation of recognition is teh practice n many states whereby an unrecognised state oror govt. cannot claim rights available to recognised state or

govt. before the municipal courts.2)Declaratory theory - Recognition is merely an acceptance by states of an already existing situation. A new state will acquire capacity in international law not by virtue of the consent of others but by virtue of a particular factual situation. The factors which the US looks into for recognising a state are:1)effective control over a clearly defined territory and population2)an organised govt. administration of that territory 3)capacity to act effectively to conduct foreign relations & fuflfil international obligations4) whether it is recognised by other states of teh international community

eg:Kosovo declared independance in 2008. USA, UK and majority of EU states recognised it, however, states such as Russia, Serbia, Spain and Greece did not recognise it. For those who recognised it - Kosovo will be entitled to all th privileges and responsibilities of statehood in the international community and within the legal systems of recognising states.

Recognising Governments - Diff from from recognising states, the recognition will be relevant only where the chane in government is unconstitutional.1)Effective control of a new govt. over the territory of the state - imp guideline to decide whether to extend recognition or not (The doctrine of effective control) - a state does not cease to be an international legal person because its govt. is overthrown. - sometimes, as in the case of a new state, it would require the recognition of both the state and the govt., in this case, if the govt. is recognised, then it automatically means that the state is also recognized but the vice versa does not follow. - if the government is unrecognised - then there is no exchange of diplomatic envoy. -Tobar Doctrine - if a govt. has come into power by extra-constitutional means, that state should not be recognised till the people accept the government.- lately, states such as UK, France, Belgium, adopted the stand of not distinguishing the recognition of state and govt.- De facto / de jure recognition - de facto -recognition involves a hesitant assessment of the situation, an attitude of wait and see. does not involve the exchange of diplomatic relations.- de jure - the recognising state accepts that the effective control displayed by the govt. is permanent and firmly rooted and no legal reasons detracting fro thiseg: UK recognised the Soviet govt de facto in 1921 and de jure in 1924.- Pre mature recognition when a state recognises an emerging state, i.e. before it has effectively control over its territory. eg: the recognition of Croatia by European community in 1992 was premature -Recognition can be over due too - i.e when recognition is given long after the criteria of statehood has been satisfied.

Implied Recognition - Recognition does not always need to be express, i.e. in an open, unambiguous and formal communication. It coudl be implied too.

Conditional Recognition -The practice of making the recognition subject to fulfillment of certain conditions.

Collective Recognition - When states decide to extend recognition collectively. - membership to the UN constitutes powerful evidence of statehood, however it does not mean all the members of the UN recognises this new state, the states have reserved the right to extend recognition to their own executive authorities and they need not delegate it to any international institution.

- Recognition once given can be withdrawn. it is easier to withdraw de facto recognition. However, de jure can also be withdrawn. UK and France withdrew their recognition to Cambodia in 1979.

- Non - recognition The doctrine of non recognition states that under certain conditions, a factual situation will not be recognised because of strong reservations as to the morality or legality of the actions that have been adopted in order to bring about the factual situation. This doctrine is reinforced by the principle legal

rights cannot be derived from an illegal situation. Doctrine of domestic jurisdiction This constitutes a legal prohibition on interference within the internal mechanisms of an entity and emphasizes the supremacy of a state within its own frontiers. 2 methods by which a new entity may gain its independence as a new state: 1)constitutional means, that is by agreement with the former controlling administration in an orderly devolution of power. Burma became a state by a legislation passed by Burmese-United Kingdom agreement and treaty and by Burma Independence Act of 1947. 2)non constitutional methods - usually by force, against the will of the previous sovereign.

There are 5 modes of acquisition:1) Occupation of terra nullius 2) Prescription 3) Cession4) Accretion5) Subjugation (or conquest)

ACQUISITIONThere are 5 common modes of acquisition. They are:1. Occupation of terra nullius;2. Prescription;3. Cession;4. Accretion; and5. Subjugation (or conquest)

These are further divided into original and derivative modes.Boundary treaties and boundary awardsBoundary treaties, whereby either additional territory is acquired or lost or uncertain boundaries are clarified by agreement between the states concerned, constitute a root of title in themselves. They constitute a special kind of treaty in that they establish an objective territorial regime valid erga omnes.

Accordingly, many boundary disputes in fact revolve around the question of treaty interpretation. It is accepted that a treaty should be interpreted in the light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties, 1969, ‘in good faith, in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose’ . Essentially the aim is to find the ‘common will’ of the parties, a concept which includes consideration of the subsequent conduct of the parties. Since many of the boundary treaties that need to be interpreted long pre-date the coming into force of the Vienna Convention, the problem of the applicability of its provisions has arisen. Courts have taken the view that the Convention in this respect at least represents customary international law, thus apparently obviating the problem.

In interpreting a boundary treaty, in particular in seeking to resolve ambiguities, the subsequent practice of the parties will be relevant. Even where such subsequent practice cannot in the circumstances constitute an authoritative interpretation of the treaty, it may be deemed to ‘be useful’ in the process of specifying the frontier in question. However, where the boundary line as specified in the pertinent instrument is clear, it cannot be changed by a court in the process of interpreting delimitation provisions.

Like boundary treaties, boundary awards may also constitute roots or sources of legal title to territory. A decision by the International Court or arbitral tribunal allocating title to a particular territory or determining the boundary line as between two states will constitute establishment or confirmation of title that will be binding upon the parties themselves and for all practical purposes upon all states in the absence of maintained protest.

ACCRETION

This describes the geographical process by which new land is formed and becomes attached to existing land, as for example the creation of islands in a river mouth or the change in direction of a boundary

river leaving dry land where it had formerly flowed. Where new land comes into being within the territory of a state, it forms part of the territory of the state and there is no problem. As regards a change in the course of a river forming a boundary, a different situation is created, depending whether it is imperceptible and slight or a violent shift (avulsion). In the latter case, the general rule is that the boundary stays at the same point along the original river bed.1 However, where a gradual move has taken place the boundary may be shifted.2

CESSION

This involves the peaceful transfer of territory from one sovereign to another (with the intention that sovereignty should pass) and has often taken place within the framework of a peace treaty following a war.

Because cession has the effect of replacing one sovereign by another over a particular piece of territory, the acquiring state cannot possess more rights over the land than its predecessor had. This is an important point, so that where a third state has certain rights, for example, of passage over the territory, the new sovereign must respect them. The rights of the territorial sovereign are derived from a previous sovereign, who could not, therefore, dispose of more than he had. This contrasts with, for example, accretion which is treated as an original title, there having been no previous legal sovereign over the land.

The Island of Palmas case3 emphasised this point. It concerned a dispute between the United States and the Netherlands. The claims of the United States were based on an 1898 treaty with Spain, which involved the cession of the island. It was emphasised by the arbitrator and accepted by the parties that Spain could not thereby convey to the Americans greater rights than it itself possessed. The basis of cession lies in the intention of the relevant parties to transfer sovereignty over the territory in question. Without this, it cannot legally operate.

Although instances of cession usually occur in an agreement following the conclusion of hostilities, it can be accomplished in other circumstances, such as the purchase of Alaska by the United States in 1867 from Russia or the sale by Denmark of territories in the West Indies in 1916 to the United States. It may also appear in exchanges of territories or pure gifts of territory.

CONQUEST AND THE USE OF FORCE

How far a title based on force can be regarded as a valid, legal right recognisable by other states and enforceable within the international system is a crucial question. Ethical considerations are relevant and the principle that an illegal act cannot give birth to a right in law is well established in municipal law and is an essential component of an orderly society.

Conquest, the act of defeating an opponent and occupying all or part of its territory, does not of itself constitute a basis of title to the land. Conquest, of course, may result from a legal or an illegal use of force. By the Kellogg–Briand Pact of 1928, war was outlawed as an instrument of national policy, and by article 2(4) of the United Nations Charter all member states must refrain from the threat or use of force against the territorial integrity or political independence of any state. However, force will be legitimate when exercised in self-defence.

The Nuremberg War Crimes Tribunal after the Second World War, in discussing the various purported German annexations of 1939 and 1940, firmly declared that annexations taking place before the conclusion of a war were ineffective and invalid in international law. It is, however, clear today that the acquisition of territory by force alone is illegal under international law. This may be stated in view of article 2(4) of the UN Charter and other practice. Security Council resolution 242, for example, emphasised the ‘inadmissibility of the acquisition of territory by war’, while the 1970 Declaration of Principles of International Law adopted by the UN General Assembly provides that: the territory of a

1 See e.g. Georgia v. South Carolina 111 L.Ed.2d 309, 334; 91 ILR, pp. 439, 458. See also the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), ICJ Reports, 1992, pp. 351, 546.2 ICJ Reports, 1992, pp. 351, 546.3 2 RIAA, p. 829 (1928); 4 AD, p. 103.

state shall not be the object of acquisition by another state resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognised as legal.

In Security Council resolution 662 (1990), adopted unanimously, the Council decided that the declared Iraqi annexation of Kuwait ‘under any form and whatever pretext has no legal validity and is considered null and void’. All states and institutions were called upon not to recognise the annexation and to refrain from actions, which might be interpreted as indirect recognition. Acquisition of territory following an armed conflict would require further action of an international nature in addition to domestic legislation to annex. Such further necessary action would be in the form either of a treaty of cession by the former sovereign or of international recognition.

THE EXERCISE OF EFFECTIVE CONTROL

Occupation is a method of acquiring territory which belongs to no one (terra nullius) and which may be acquired by a state in certain situations. The occupation must be by a state and not by private individuals, it must be effective and it must be intended as a claim of sovereignty over the area. It relates primarily to uninhabited territories and islands, but may also apply to certain inhabited lands.

The issue was raised in the Western Sahara case before the International Court of Justice. The question was asked as to whether the territory in question had been terra nullius at the time of colonisation. It was emphasised by the Court that the concept of terra nullius was a legal term of art used in connection with the mode of acquisition of territory known as ‘occupation’. The latter mode was defined legally as an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession. In an important statement, the Court unambiguously asserted that the state practice of the relevant period (i.e. the period of colonisation) indicated that territories inhabited by tribes or peoples having a social and political organisation were not regarded as terrae nullius.

Prescription is a mode of establishing title to territory which is not terra nullius and which has been obtained either unlawfully or in circumstances wherein the legality of the acquisition cannot be demonstrated. It reflects the need for stability felt within the international system by recognising that territory in the possession of a state for a long period of time and uncontested cannot be taken away from that state without serious consequences for the international order.

Prescription differs from occupation in that it relates to territory which has previously been under the sovereignty of a state. In spite of this, both concepts are similar in that they may require evidence of sovereign acts by a state over a period of time. And although distinct in theory, in practice these concepts are often indistinct since sovereignty over an area may lapse and give rise to doubts whether abandonment has taken place, rendering the territory terra nullius.

Acquiescence in the case of prescription, whether express or implied from all the relevant circumstances, is essential, whereas in the case of occupation it is merely an evidential point reinforcing the existence of an effective occupation, but not constituting the essence of the legal claim.

There is a third mode of theoretical classification that has been outlined by De Visscher who attempted to render it more consonant with practical realities by the introduction of the concept of historical consolidation. This idea is founded on proven long use, which reflects a complex of interests and relations resulting in the acquisition of territory (including parts of the sea). Historical consolidation may apply to terra nullius as well as to territories previously occupied. Thus it can be distinguished from prescription. It differs from occupation in that the concept has relevance to the acquisition of parts of the sea, as well as of land. And it may be brought into existence not only by acquiescence and consent, but also by the absence of protest over a reasonable period by relevant states.

After the Anglo-Norwegian Fisheries case, it was found that De Visscher’s classification failed to take into account of the distinction between the acquisition of territory in accordance with the rules of international law, and acquisition of territory as a permitted exception to internationally accepted legal principles. Effectiveness, therefore, rather than consolidation would be the appropriate term. Both occupation and prescription rely primarily upon effective possession and control. The element of time is here also relevant as it affects the effectiveness of control.

INTERTEMPORAL LAW

One question that arises is the problem of changing conditions related to particular principles of international law, in other words the relevant time period at which to ascertain the legal rights and obligations in question. The general rule in such circumstances is that in a dispute the claim or situation in question (or relevant treaty, for example) has to be examined according to the conditions and rules in existence at the time it was made and not at a later date.

Critical Date

In certain situations there may exist a determining moment at which it might be inferred that the rights of the parties have crystallised so that acts after that date cannot alter the legal position. Such a moment might be the date of a particular treaty where its provisions are at issue or the date of occupation of territory.

The concept of a critical date is of especial relevance with regard to the doctrine of uti possidetis, which posits that a new state has the boundaries of the predecessor entity, so that the moment of independence itself is invariably the critical date. SOVEREIGN ACTIVITIES

The exercise of effective authority is the crucial element to determine acquisition and title.However, control, although needing to be effective, does not necessarily have to amount to possession and settlement of all of the territory claimed. Precisely what acts of sovereignty are necessary to found title will depend in each instance upon all the relevant circumstances of the case, including the nature of the territory involved, the amount of opposition (if any) that such acts on the part of the claimant state have aroused, and international reaction.

Indeed in international law many titles will be deemed to exist not as absolute but as relative concepts. The state succeeding in its claim for sovereignty over terra nullius over the claims of other states will in most cases have proved not an absolute title, but one relatively better than that maintained by competing states and one that may take into account issues such as geography and international responses.

In the Island of Palmas arbitration the dispute concerned sovereignty over a particular island in the Pacific. The United States declared that, since by a treaty of 1898 Spain had ceded to it all Spanish rights possessed in that region and since that included the island discovered by Spain, the United States of America therefore had a good title. The Netherlands, on the other hand, claimed the territory on the basis of the exercise of various rights of sovereignty over it since the seventeenth century. The arbitrator, Max Huber, in a judgment which discussed the whole nature of territorial sovereignty, dismissed the American claims derived from the Spanish discovery as not effective to found title. 4 Huber declared that the Netherlands possessed sovereignty on the basis of ‘the actual continuous and peaceful display of state functions’ evidenced by various administrative acts performed over the centuries.5 It was also emphasised that manifestations of territorial sovereignty may assume different forms, according to conditions of time and place. Indeed, ‘the intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved’. Additionally, geographical factors were relevant.6

The Clipperton Island arbitration concerned a dispute between France and Mexico over an uninhabited island. The arbitrator emphasised that the actual, and not the nominal, taking of possession was a necessary condition of occupation, but noted that such taking of possession may be undertaken in different ways depending upon the nature of the territory concerned. In this case, a proclamation of sovereignty by a French naval officer later published in Honolulu was deemed sufficient to create a valid title. Relevant to this decision was the weakness of the Mexican claims to the guano-rich island, as well as the uninhabited and inhospitable nature of the territory.

In the Eastern Greenland case before the Permanent Court of International Justice, both Norway and Denmark claimed sovereignty over Eastern Greenland. Denmark had colonies in other parts of

4 p. 8465 pp. 867–71.6 p. 840.

Greenland and had granted concessions in the uninhabited Eastern sector. In addition, it proclaimed that all treaties and legislation regarding Greenland covered the territory as a whole, as for example its establishment of the width of the territorial sea, and it sought to have its title to all of the territory recognised by other states. The Court felt that these acts were sufficient upon which to base a good title and were superior to various Norwegian actions such as the wintering of expeditions and the erection of a wireless station in Eastern Greenland, against which Denmark had protested. It is also to be noted that it was not until 1931 that Norway actually claimed the territory.

Such activity in establishing a claim to territory must be performed by the state in the exercise of sovereign powers or by individuals whose actions are subsequently ratified by their state, or by corporations or companies permitted by the state to engage in such operations and thus performed on behalf of the sovereign. Another relevant factor, although one of uncertain strength, is the requirement of the intention by the state in performing various activities to assert claim in its sovereign capacity. This point was stressed in the Eastern Greenland case,7 but appears not to have been considered as of first importance in the Island of Palmas case.

THE ROLE OF SUBSEQUENT CONDUCT

Subsequent conduct may be relevant in a number of ways: first, as a method of determining the true interpretation of the relevant boundary instrument in the sense of the intention of the parties; secondly, as a method of resolving an uncertain disposition or situation, for example, whether a particular area did or did not fall within the colonial territory in question for purposes of determining the uti possidetis line or thirdly, as a method of modifying such an instrument or pre-existing arrangement.

Note: Recognition, acquiescence and estoppel flow, to some extent, from the principles of good faith and equity.

While, of course, the consent of a ceding state to the cession is essential, the attitude adopted by other states is purely peripheral and will not affect the legality of the transaction. Similarly, in cases of the acquisition of title over terra nullius, the acquiescence of other states is not strictly relevant although of useful evidential effect. However, where two or more states have asserted competing claims, the role of consent by third parties is much enhanced. In the Eastern Greenland case, the Court noted that Denmark was entitled to rely upon treaties made with other states (apart from Norway) in so far as these were evidence of recognition of Danish sovereignty over all of Greenland.

The leading case on estoppel is the Temple of Preah Vihear which concerned a border dispute between Cambodia and Thailand. The frontier was the subject of a treaty in 1904 between Thailand and France (as sovereign over French Indo-China which included Cambodia) which provided for a delimitation commission. The border was duly surveyed but was ambiguous as to the siting of the Preah Vihear temple area. Thailand called for a map from the French authorities and this placed the area within Cambodia. The Thai government accepted the map and asked for further copies.8 A number of other incidents took place, including a visit by a Thai prince to the temple area for an official reception with the French flag clearly flying there, which convinced the International Court that Thailand had tacitly accepted French sovereignty over the disputed area.9 In other words, Thailand was estopped by its conduct from claiming that it contested the frontier in the temple area. However, it is to be noted that estoppel in that case was one element in a complexity of relevant principles which included prescription and treaty interpretation. The case also seemed to show that in situations of uncertainty and ambiguity, the doctrines of acquiescence and estoppel come into their own, but it would not appear correct to refer to estoppel as a rule of substantive law.

SUMMARY

Apart from the modes of acquisition that rely purely on the consent of the state and the consequences of sovereignty (cession or accretion), the method of acquiring additional territory is by the sovereign exercise of effective control. Both occupation and prescription are primarily based upon effective

7 p. 95.8 pp. 6, 23; 33 ILR, pp. 48, 62.9 ICJ Reports, 1962, pp. 30–2; 33 ILR, p. 68.

possession and, although the time element is a factor in prescription, this in fact is really concerned with the effectiveness of control.The principle of effective control applies in different ways to different situations, but its essence is that ‘the continuous and peaceful display of territorial sovereignty . . . is as good as title’.10 Such control has to be deliberate sovereign action, but what will amount to effectiveness is relative and will depend upon, for example, the geographical nature of the region, the existence or not of competing claims and other relevant factors, such as international reaction.

Effectiveness has also a temporal as well as a spatial dimension as the doctrine of intertemporal law has emphasised, while clearly the public or open nature of the control is essential. The acquiescence of a party directly involved is also a very important factor in providing evidence of the effectiveness of control. Effectiveness is related to the international system as a whole, so that mere possession by force is not the sole determinant of title. This factor also emphasises and justifies the role played by recognition.

Bilateral recognition is important as evidence of effective control and should be regarded as part of that principle. International recognition, however, involves not only a means of creating rules of international law in terms of practice and consent of states, but may validate situations of dubious origin. A series of recognitions may possibly validate an unlawful acquisition of territory and could similarly prevent effective control from ever hardening into title. The significance of UN recognition is self-evident, so that the UN Security Council itself could adopt a binding resolution ending a territorial dispute by determining the boundary in question. Sovereign territory may not only be acquired, it may also be lost in ways that essentially mirror the modes of acquisition. Territory may be lost by express declaration or conduct such as a treaty of cession or acceptance of secession; by loss of territory by erosion or natural geographic activity or by acquiescence through prescription. Further, territory may be abandoned, but in order for this to operate both the physical act of abandonment and the intention to surrender title are required.

1. UNDER INTERNATIONAL LAW WHAT IS THE DEFINITION OF A STATE?

For a unit to be regarded as a state under international law it must conform with the legal conditions as to settled population, a definable area of land and the capacity to enter into legal relations. Under traditional international law, until one has a state one cannot talk in terms of title to the territory, because there does not exist any legal person capable of holding the legal title. So to discover the process of acquisition of title to territory, one has to first point to an established state.

2. WHAT DID THE ICJ DECIDE ABOUT THE LEGALITY OF THE UNILATERAL DECLARATION OF INDEPENDENCE BY KOSOVO? DO YOU BELIEVE THAT THE ICJ’S DECISION SOLVED THE PROBLEM OF WHETHER KOSOVO IS A STATE UNDER INTERNATIONAL LAW?

Accordance with International Law of the Unilateral Declaration of Independence In Respect of Kosovo was a request for an advisory opinion referred to the International Court of Justice by the UN General Assembly regarding the 2008 Kosovo declaration of independence. The territory of Kosovo is the subject of a dispute between Serbia and the Republic of Kosovo established by the declaration. This was the first case regarding a unilateral declaration of independence to be brought before the court.

The court delivered its advisory opinion on 22 July 2010; by a vote of 10 to 4, it declared that "the adoption of the declaration of independence of the 17 February 2008 did not violate general international law because (1) international law contains no 'prohibition on declarations of independence'":

10 Judge Huber, Island of Palmas case, 2 RIAA, pp. 829, 839 (1928); 4 AD, p. 103.

[2] nor did the adoption of the declaration of independence violate UN Security Council Resolution 1244, since this did not describe Kosovo's final status, nor had the Security Council reserved for itself the decision on final status.

There were many reactions to the decision, with most countries which already recognise Kosovo hailing the decision and saying it was "unique" and does not set a precedent; while many countries which do not recognise Kosovo said they would not be doing so as the ruling could set a precedent of endorsing secession in other places.

3. WHO ARE NON-STATE ACTORS AND HOW HAVE THEY AFFECTED THE EVOLUTION OF PIL?

1. The concept of non-state actors is generally understood as including any entity that is not actually a state, often used to refer to armed groups, terrorists, civil society, religious groups or corporations. It is occasionally used to encompass inter-governmental organizations. In the context of post-conflict peacebuilding, the expression "non-state actor" is used to refer to a range of armed groups that operate beyond state control.It could be defined as an actor on the international stage other than a sovereign state. Armed non-state actors' (NSAs) are defined as 'armed groups that operate beyond state control'. It includes, but is not limited to, the following group: -rebel opposition groups (groups with a stated incompatibility with the govt, generally concerning the control of govt or the control of territory) -local militias - vigilantes-warlords-civil defence forces and paramilitary groups -private companies that provide military and security servicesCertain international treaties such as (UN Convention against corruption, The Contonou Agreement) oblige states to cooperate with relevant NSA. In the Cotonou Agreement, the parties are to inform and involve NSA while forming policies and strategies,they are to even provide financial resources under certain conditions, etc. Even treaties in human rights involve NSA's. Problems of engaging non-state actors1)The open-ended nature of the term defies a restrictive definition and gives rise to misunderstandings and tensions. Corporations find themselves branded in the same category as rebel groups, UN with the paramilitaries. 2)There is fear that engaging with NSA's will legitimize the group and dilute the power of the state3)International system needs to remain state-centric and by working with NSAs, it involves swimming against the tide!NSA's are instrumental in generating soft law and they are also influential in accelerating the political process to motivate states to create hard law. (through lobbying efforts, informational campaigns and coordinating action among various organization.NSA represent interests different than those of state actors and they are primarily accountable to different to people. They represent different interests and thereby reduce the perceived democratic deficit. NSA's are also participants to international negotiations. Though the states conduct the negotiation, NGA play a variety of influential roles.

Basic Principles of PIL II: State Responsibility, the International Court of Justice & Diplomatic Privileges & Immunities

1. FROM WHAT ARE STATES IMMUNE? The principle of sovereign equality of States requires that the official representatives of one State should not be subject to the jurisdiction of another State. For example, the law of the sea provides that warships are subject only to the jurisdiction of the flag State. Even if warships commit acts contrary to the right of innocent passage or the laws and regulations of the coastal State, the coastal State’s only remedy is to escort the offending warship out of the territorial sea. The principle of State immunity or sovereign immunity provides that foreign sovereigns enjoy immunity from the jurisdiction of other States. Sovereign immunity, or state immunity, is a principle of customary international law, by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its

consent. Put in another way, a sovereign state is exempt from the jurisdiction of foreign national courts. Thus, the question of immunity is at the same time a question of jurisdiction: only when the court already has jurisdiction will it become meaningful to speak of immunity or exemption from it. For this reason, sovereign immunity is also referred to as “jurisdictional immunity” or “immunity from jurisdiction.” Because different types of legal proceedings may be brought against foreign states, sometimes courts find it necessary to refer to jurisdictional immunities of states.

The principle of diplomatic immunity provides that the diplomatic agents of the sending State have complete immunity from the criminal jurisdiction of the receiving State. Since this immunity belongs to the sending State and not to the diplomat, it can be waived by the sending State. Also, the receiving State has the right to expel any diplomatic agent from its country by declaring them persona non grata . The premises of an embassy or diplomatic mission as well as its records and archives are also inviolable. The authorities of the receiving State cannot enter a foreign embassy without the express permission of the head of mission, even in the case of an emergency.2. WHAT DIPLOMATIC PRIVILEGES DO STATES AND CERTAIN STATE REPRESENTATIVES HAVE?

The Vienna Convention on Diplomatic Relations 1961, codified the existing laws and established other laws on diplomatic privileges and immunity.1) A 22 of the Vienna convention declares the premises of the mission to be inviolable and agents of the receiving state are not to enter them without the consent of the mission.2) A 27 provides that the receiving state shall permit and protect free communication on behalf of the mission for all official purposes.3) The diplomatic bag cannot be opened or detained and that the packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use. 4) A 23 - grants a general exception from taxation in respect of the mission premises is posited. 5) Archives and documents of the diplomatic mission are also inviolable6) A 29- the person of a diplomatic agent is inviolable (he cannot be detained or arrested) However, in exceptional cases, a diplomat may be arrested or detained on the basis of self-defense or in the interests of protecting human life. 7) A 30(1) provides for the inviolability of the pvt residence of a diplomatic agent 8) A 30(2) provides inviolability for the diplomat's papers, correspondence and property 9) Diplomatic agents enjoy complete immunity from the criminal jurisdiction of the receiving state 10) Diplomats are also immune from civil and administrative jurisdiction of the state in which they are serving. except in 3 cases(1) where the action relates to pvt immovable prop. Situated within the host state (unless for mission purposes) (2) litigation relating to succession matters in which he is involved as a private person (3) w.r.t unofficial professional or commercial activity engaged in by the agent11) Diplomatic person are immune from all taxes except indirect taxes 12) Family members of the diplomatic agent forming part of his household would enjoy the priviledges and immunities stated in A 29-36, if they are not nationals of the receiving state. The only remedy the host state has when a diplomat commits an offence, is to declare him persona non grata under article 9.

3. DO SITTING HEADS OF STATE HAVE DIPLOMATIC IMMUNITY FROM SOME OR ALL ACTS? WHAT DO THE PINOCHET AND DRC V. BELGIUM CASES INDICATE ABOUT DIPLOMATIC IMMUNITY?

4. WHO OR WHAT CAN BE HELD RESPONSIBLE FOR A VIOLATION OF PIL?

5. UNDER WHAT CIRCUMSTANCES, IF ANY, COULD THE ACTS OF AN INDIVIDUAL, OR INDIVIDUALS, GIVE RISE TO STATE RESPONSIBILITY?

State responsibility - whenever one state commits an internationally unlawful act against another state,

international responsibility is established between the two.International Law Commission has worked on this, Article 1 of ILC's articles on state responsibility reiterates the rule. The essential characteristics of responsibilty hinge upon certain basic factors:1)the existence of an international legal obligation in force between 2 particular states2)an act or omission must occur which violates the obligation which is imputable to the state responsibilty3)this unlawful act or omission resulted in loss or damage

It is international law that determines what constitutes an internationally unlawful act, irrespective of any provisions of municipal law.

The state's responsibility is strict, i.e. it follows the principle of objective responsibility. It does not matter if teh act was done in good or bad faith, once injury has been caused by an agent of teh state, the state would be responsible.

The doctrine of imputability - if there exists a link between the state and the person or persons actually committing the unlawful act or omission, then the state is responsible.

In the Genocide Convention (Bosnia v. Serbia) case - which is regarded as ' one of the cornerstones of the law of state responsibility, it was held that the conduct of any state organ is to be considered an act of the state under international law and therefore gives rise to the responsibility of the state if it constitutes a breach of an obligation of the state.

The state would be responsible even if it's agent or organ acted beyond their scope of authority. (I.E. even if an act is ultra vires, the state would still be responsible) the conduct of a person or a group of persons would be considered as an act of the state under international law if the conduct of a person or group of persons shall be considered as an act of the state was if it exercising elements of authority.

The general principle is on non - liability for acts of mob violence, insurrections and civil wars but state has to show due diligence. If a state comes to power after some acts of violence, once it comes to power it will be responsible. Circumstances precluding wrongfulness1)Countermeasures - Lawful countermeasures must be in response to a prior wrongful act and taken in light of refusal to remedy it, directed against the state committing the wrongful act and proportionate. The injured state must call upon the responsible state to fulfill its obligations and notify that state of any decision to take countermeasures and should offer to negotiate.

2)Force Majeure - accepted as precluding wrongfulness although the standard of proof is high. The emphasis, therefore, is upon the happening of an event that takes place without the state being able to do anything to rectify the event or avert its consequences. Test of applicability was of "absolute and material impossibility".

Consequences of internationally wrongful acts:1) Cessation - The state responsible for the internationally wrongful act is under an obligation to cease the act, if it is continuing, and to offer appropriate assurances and guarantees if non-repetition if circumstances so require. 2)Reparation - Remedying the breach of an international obligation for which the state concerned is responsible,

When there is a breach of a jus cogens - it is considered as an "international crime". - is committed by a state when it commits an internationally wrongful act which constitutes a breach of an international obligation that is considered to be a fundamental interest to the international community. All other internationally wrongful acts are termed as international delicts.

A state could be responsible for failing to provide diplomatic protection and nationality claims. A state

is under a duty to protect its nationals and it may take u[ their claims against other states too.

Customary international law provides that before international proceedings are instituted or claims or representations made, the remedies provided by the local state should have been exhausted. (The exhaustion of local remedies)

6. WHAT DOES THE GENOCIDE CASE TELL US ABOUT STATE RESPONSIBILITY? 7. WHAT IS THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE (ICJ)? 8. ARE ICJ DECISIONS BINDING UPON STATES? 9. CAN ANY OTHER ENTITIES EXCEPT FOR STAES GO BEFORE THE ICJ?

10. HOW DOES THE CONCEPT OF EXTRADITION WEAVE INTO IMMUNITY?

Pinochet Case (Extracts)A former head of state only has immunity with regard to his acts as a head of state but not with regard to acts which fall outside his role as head of state. A head of state may be treated as the state itself and entitled to the same immunities.A former head of state cannot have immunity for acts of murder committed outside his own territory. International law recognizes crimes against humanity and the Torture Convention says that no circumstances can be invoked as justification for torture. Therefore it cannot be a part of the function of a head of state under international law to commit those crimes.

There is general agreement between the parties as to the rules of statutory immunity and the rationale which underlies them. The issue is whether international law grants state immunity in relation to the international crime of torture and, if so, whether the Republic of Chile is entitled to claim such immunity even though Chile, Spain and the United Kingdom are all parties to the Torture Convention and therefore “contractually” bound to give effect to its provisions from 8 December 1988 at the latest.CURRENT HEAD OF STATEIt is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of the head of state persists to the present day: the head of state is entitled to the same immunity as the state itself. The diplomatic representative of the foreign state in the forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae.FORMER HEAD OF STATEWhat then when the ambassador leaves his post or the head of state is deposed? The position of the ambassador is covered by the Vienna Convention on Diplomatic Relations (1961). After providing for immunity from arrest (article 29) and from criminal and civil jurisdiction (article 31), article 39(1) provides that the ambassador’s privileges shall be enjoyed from the moment he takes up post; and paragraph (2) provides:“When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.”The continuing partial immunity of the ambassador after leaving post is of a different kind from that enjoyed ratione personae while he was in post. Since he is no longer the representative of the foreign state he merits no particular privileges or immunities as a person. However in order to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador’s time. Accordingly under article 39(2) the ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official. This limited

immunity, ratione materiae, is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities whether public or private.In my judgment at common law a former head of state enjoys similar immunities, ratione materiae, once he ceases to be head of state. He too loses immunity ratione personae on ceasing to be head of state: see Sir Arthur Watts Q.C., Hague Lectures, “The Legal Position in International Law of Heads of States, Heads of Government and Foreign Ministers” 1994-III 247 Recueil des cours, p. 88 and the cases there cited. He can be sued on his private obligations: Ex-King Farouk of Egypt v. Christian Dior (1957) 24 I.L.R. 228; Jimenez v. Aristeguieta (1962) 311 F.2d 547. As ex-head of state he cannot be sued in respect of acts performed whilst head of state in his public capacity: Hatch v. Baez (1876) 7 Hun 596. Thus, at common law, the position of the former ambassador and the former head of state appears to be much the same: both enjoy immunity for acts done in performance of their respective functions whilst in office.The question then which has to be answered is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an act committed by Senator Pinochet as part of his official functions as head of state. It is not enough to say that it cannot be part of the functions of the head of state to commit a crime. Actions which are criminal under the local law can still have been done officially and therefore give rise to immunity ratione materiae. The case needs to be analysed more closely.Can it be said that the commission of a crime which is an international crime against humanity and jus cogens is an act done in an official capacity on behalf of the state? I believe there to be strong ground for saying that the implementation of torture as defined by the Torture Convention cannot be a state function. This is the view taken by Sir Arthur Watts Q.C. in his Hague Lecture who said, at p. 82: [*204]“While generally international law … does not directly involve obligations on individuals personally, that is not always appropriate, particularly for acts of such seriousness that they constitute not merely international wrongs (in the broad sense of a civil wrong) but rather international crimes which offend against the public order of the international community. States are artificial legal persons: they can only act through the institutions and agencies of the state, which means, ultimately, through its officials and other individuals acting on behalf of the state. For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal state and not to the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice. The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law. Problems in this area – such as the non-existence of any standing international tribunal to have jurisdiction over such crimes, and the lack of agreement as to what acts are internationally criminal for this purpose – have not affected the general acceptance of the principle of individual responsibility for international criminal conduct.”Later he said, at p. 84: “It can no longer be doubted that as a matter of general customary international law a head of state will personally be liable to be called to account if there is sufficient evidence that he authorised or perpetrated such serious international crimes.”It can be objected that Sir Arthur was looking at those cases where the international community has established an international tribunal in relation to which the regulating document expressly makes the head of state subject to the tribunal’s jurisdiction: see, for example, the Nuremberg Charter, article 7; the Statute of the International Criminal Tribunal for Former Yugoslavia; the Statute of the International Criminal Tribunal for Rwanda and the Statute of the International Criminal Court. It is true that in these cases it is expressly said that the head of state or former head of state is subject to the court’s jurisdiction. But those are cases in which a new court with no existing jurisdiction is being established. The jurisdiction being established by the Torture Convention and the Hostages Convention is one where existing domestic courts of all the countries are being authorised and required to take jurisdiction internationally. The question is whether, in this new type of jurisdiction, the only possible view is that those made subject to the jurisdiction of each of the state courts of the world in relation to torture are not entitled to claim immunity.I have doubts whether, before the coming into force of the Torture Convention, the existence of the international crime of torture as jus cogens was enough to justify the conclusion that the organisation of state torture could not rank for immunity purposes as performance of an official function. At that stage there was no international tribunal to punish torture and no general jurisdiction to permit or require its punishment in domestic courts. Not until there was some form of universal jurisdiction for the punishment of the crime of torture could it really be talked about as a fully constituted international crime. But in my judgment [*205] the Torture Convention did provide what was missing: a worldwide universal jurisdiction. Further, it required all member states to ban and outlaw torture: article 2. How can it be for international law purposes an official function to do something which international law

itself prohibits and criminalises? Thirdly, an essential feature of the international crime of torture is that it must be committed “by or with the acquiesence of a public official or other person acting in an official capacity.” As a result all defendants in torture cases will be state officials. Yet, if the former head of state has immunity, the man most responsible will escape liability while his inferiors (the chiefs of police, junior army officers) who carried out his orders will be liable. I find it impossible to accept that this was the intention.Finally, and to my mind decisively, if the implementation of a torture regime is a public function giving rise to immunity ratione materiae, this produces bizarre results. Immunity ratione materiae applies not only to ex-heads of state and ex-ambassadors but to all state officials who have been involved in carrying out the functions of the state. Such immunity is necessary in order to prevent state immunity being circumvented by prosecuting or suing the official who, for example, actually carried out the torture when a claim against the head of state would be precluded by the doctrine of immunity. If that applied to the present case, and if the implementation of the torture regime is to be treated as official business sufficient to found an immunity for the former head of state, it must also be official business sufficient to justify immunity for his inferiors who actually did the torturing. Under the Convention the international crime of torture can only be committed by an official or someone in an official capacity. They would all be entitled to immunity. It would follow that there can be no case outside Chile in which a successful prosecution for torture can be brought unless the State of Chile is prepared to waive its right to its officials’ immunity. Therefore the whole elaborate structure of universal jurisdiction over torture committed by officials is rendered abortive and one of the main objectives of the Torture Convention – to provide a system under which there is no safe haven for torturers – will have been frustrated. In my judgment all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention.For these reasons in my judgment if, as alleged, Senator Pinochet organised and authorised torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law, Chile had agreed to outlaw such conduct and Chile had agreed with the other parties to the Torture Convention that all signatory states should have jurisdiction to try official torture (as defined in the Convention) even if such torture were committed in Chile.As to the charges of murder and conspiracy to murder, no one has advanced any reason why the ordinary rules of immunity should not apply and Senator Pinochet is entitled to such immunity.For these reasons, I would allow the appeal so as to permit the extradition proceedings to proceed on the allegation that torture in pursuance of a conspiracy to commit torture, including the single act of [*206] torture which is alleged in charge 30, was being committed by Senator Pinochet after 8 December 1988 when he lost his immunity.Regina v. Bartle, Bow Street Stipendiary Magistrate and Commissioner of Police, Ex parte Pinochet

Procedural History:Appeal from arrest and extradition order.

Overview:-Pinochet (D) claimed that he could not be extradited because he was not guilty of any crime under English law. An English magistrate issued an arrest warrant for Pinochet (D), the former head of state of Chile, at the request of a Spanish investigating judge for extradition.-The House of Lords found that Pinochet (D) could not claim immunity in regard to torture that had been made a universal crime by the International Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment of 1984.-Pinochet (D) claimed torture was not strictly an international crime in the highest sense.

Issue:Is torture an international crime?

Rule:Yes, torture is an international crime.

Analysis: The Torture Convention created an exception to the otherwise applicable immunity of present and former heads of state from criminal process. Pinochet (D) ultimately was found to be too sick to stand trial. He was allowed to return to Chile.

Outcome:-Torture is an international crime. The Torture Convention was agreed not to create an international crime that had not previously existed but to provide an international system under which the international criminal-the torturer-could find no safe haven.-All state parties are required to prohibit torture on their territory and to take jurisdiction over any alleged offender who is found within their territory.-Torture is to be treated as an extraditable offense and will be considered to have been committed not only in the place where it occurred but also in the state where either the alleged offender or victim is a national.

Any state may exercise universal jurisdiction over crimes against humanity

A number of crimes against humanity (such as the practice of systematic or widespread killings, torture, forced disappearances, and arbitrary detention ) have been the subject of international conventions and are recognized by international customary law. 

These crimes against humanity are subject to universal jurisdiction.

This principle has been established since the International Military Tribunal of Nüremberg and its Judgment.

Crimes against humanity and the norms which regulate them form part of jus cogens (fundamental norms) and as such are peremptory norms of general international law which as recognized in the Vienna Convention of the Law of Treaties (1969) cannot be modified or revoked by treaty or national law.

The rules regulating crimes against humanity - no immunity under international lawThose responsible for crimes against humanity cannot invoke immunity or special privileges as a means of avoiding legal proceedings a principle established within the Statute of Nüremberg International Military Tribunal (Article 7). The United Nations General Assembly reaffirmed the principles articulated in the Nüremberg Charter and Judgment in its Resolution 95 (I) of 11 December 1946. (The UN International Law Commission reaffirmed the principles established by the Nüremberg Tribunal by which international law may impose duties on individuals directly without any interposition of internal law)Whether or not crimes against humanity have been codified in the internal laws of a state does not exempt a state from conducting judicial investigations into crimes against humanity since these are already codified under international law. Sovereign immunity is an important exception to the general rule of territorial jurisdiction, and is probably one of the oldest rules of public international law. The rationale behind this doctrine is stated by Chief Justice Marshall in the case of The Schooner exchange v. McFaddon. The idea is that sovereigns, even while exercising their absolute immunity from any prosecution and freedom from prosecution, in the event of more interaction between states, and the growing community of international law, there can be an arrangement where such a right to immunity could be waived by the sovereign in question.While earlier, it was afforded to the person of the sovereign to whom allegiance was due, it now applies to the legal construct of the state as well. Arrest Warrant case- Immunities granted to persons as officials of state not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective states. (para 53)2 kinds of immunity from jurisdiction: ratione personae( status of person) and ratione materiae ( inherently sovereign nature of conduct) In the former, immunity lasts as long as the office or status lasts while the latter, the immunity exists for all time till the state is in existence.Also known as functional immunity and personal immunity.Functional immunity: Protects certain senior officials (chiefs of state, prime ministers, foreign ministers, etc…) from prosecution in other countries for acts committed within the context of their official duties. This immunity is justified under customary international law by the fact that the actions of such persons are "act of state”. Functional immunity is linked to a position rather than a specific person. When a state is engaged in trade, those acts are not immune, things like bank lending is not a functional aspect of the state, thus no immunity. This immunity is permanent, which means that an official who has this protection can never be brought to justice even after she has left her post, but will

only end if the state itself ceases to exist. For example, in November 2007, a French prosecutor refused to indict the former United States Secretary of Defense, Donald Rumsfeld for crimes allegedly committed during the 2003 invasion of Iraq because he was still protected by functional immunity.However, a person benefiting from functional immunity may be brought before a court for acts committed in his personal capacity. For example, an official accused of having stolen funds would not be protected by functional immunity because her acts were outside of her official duties and cannot be attributed to the state. It is now generally recognized that immunity does not protect state actors from prosecution in international courts for the most serious international crimes (war crimes, crimes against humanity, torture and genocide). This is because such acts can never be considered as part of a state’s legitimate function so that they may not be imputed to it. This defence has been disavowed by the Nuremberg Charter (article 7), the Genocide Convention (article 4), the Statute of the International Criminal Tribunal for the former Yugoslavia (article 7(2)), the Statute of the International Criminal Tribunal for Rwanda (article 6(2)) and the Rome Statute of the International Criminal Court (article 27). In one of the most famous decisions cited in favour of a limited application of functional immunity, the House of Lords held on November 25, 1998 that Augusto Pinochet, former president of Chile, could not benefit from functional immunity for “international crimes”. (pinochet case – crime=torture)Personal Immunity: Absolute, individual and temporary. This form of immunity protects certain senior officials (heads of State, diplomatic agents, ministers of foreign affairs, etc.) from all law suits while they are in office. This immunity is justified on the basis that such officials and diplomats require a certain amount of independence to be able to effectively exercise their functions. In June 2002, the International Court of Justice affirmed that absolute immunity of the DRC’s Minister for Foreign Affairs in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). The Court held that an arrest warrant could not be issued against a sitting minister of foreign affairs because he had to be able to travel freely in order to fulfill his mission. Contrasting this decision with the Pinochet case highlights the difference between functional and personal immunity. Even though functional immunity cannot be invoked in an international court in the case of the most serious international crimes, Yerodia was protected by his personal immunity as long as he exercised the function of minister of foreign affairs. (case- al basheer’s case, sudhanese president, arrest warrant for international crimes committed, he was the president of Sudhan when the warrant was issued) The Prosecutor v. Omar Al Bashir, International Criminal Court (ICC), case no. 02/05‐01/09 – ask someone for a case summary!

Brief Fact Summary. following the genocide of Bosnia Muslims, a suit was brought against Serbia and Montenegro (D) by Bosnia and Herzegovina (P).

Synopsis of Rule of Law. the obligation under the Genocide Convention binds the contracting parties to the Convention not to commit, through their organs or persons or groups whose conduct is attributable to them, genocide and the other acts enumerated in Article II.Facts. A suit was brought against the Federal Republic of Yugoslavia (Serbia and Montenegro) (D) under the Genocide Convention by Bosnia and Herzegovina (P). The plaintiffs alleged that Serbia (D) contravened the Convention by committing genocide against Bosnia’s (P) Muslim population. The International Court of Justice in this first part of the case threw more light on the provisions of the Genocide Convention, including the undertaking to “prevent and punish” genocide in Article I, the definition of genocide in Article II, and the phase “responsibility of a State for genocide” in Article IX. (See Chapter 8, pages 54-55 for additional facts in this case).

Issue. are the obligation under the Genocide Convention binding on the contracting parties and do they prevent the parties from committing, through their organs or persons or groups whose conducts are attributable to them, genocide and other acts enumerated in Article II?Held. yes. The obligation under the Genocide Convention binds the contracting parties to the Convention not to commit, through their organs or persons or group whose conduct is attributable to them, genocide and other acts enumerated in Article II.The obligation imposed on the parties is dependent on the ordinary meaning of the terms of the Convention, read in context and in light of the Convention’s object and purpose. Resorting to supplementary means of interpretation, including the Convention’s preparatory work and the circumstances of its conclusion are the means of resolving the confusions associated to terms, context and purpose.The parties under the Convention are under an obligation not to commit genocide themselves.  This obligation is not imposed expressly by the Convention but the effect of Article II is to prohibit states from committing genocide themselves. The

logic behind the Convention is that the prohibition follows from the fact that the Article categorizes genocide as an international law crime and by agreeing to such a categorization, the parties must logically undertake not to commit the act described. It also follows from the expressly stated obligation to prevent the commission of acts of genocide.Serbia (D) further postulated that the drafting history of the Convention shows that the states are not directly responsible under the Convention for acts of genocide, but heat states have civil responsibility to prevent and punish genocide committed by individuals. The drafting history also throws more light on the fact the Chairman of the Sixth Committee believed that Article IX as modified provided for state responsibility for genocide.

The ICJ ruled on 2 February 2007 that genocide was commit ted in Srebrenica (as a lso found by the ICTY Appeals Chamber in the Krst ic case, see below). Serbia was not found responsible for the genocide, as the Bosnian Serb generals were not act ing as s ta te agents and did not receive expl ic i t inst ruct ions from Serbia . The Court a lso ruled that Serbia was not complici t a t that t ime as i t did not know that a genocide had been perpetuated.Nevertheless , Serbia was found to be breaching i ts obl igat ions under the Convent ion on the Prevent ion and Punishment of the Crime of Genocide by fai l ing to prevent the 1995 genocide in Srebrenica, and by fai l ing to punish those responsible . Serbia’s fa i lure to t ransfer Ratko Mladic to the ICTY was held to amount to a cont inuing violat ion of the Genocide Convent ion, and the Court ordered Serbia ful ly to cooperate with the Tribunal .

Week 4The Law of Treaties

1. WHAT IS THE FUNCTION OF A TREATY IN PIL? 1) In the absence of a world govt., the treaties lay down the standards that international agents are bound to observe in their relations. They create and impose certain international cooperative structures.2)Treaties come in many varieties, some constitute international organisations such as the UN, others might regulate particular areas of international law such as the law of sea, and some others might be purely commercial such an an agreement about the sale of oil, or about student exchanges between the two states etc. 3)They help in regulating international relations. It is the law of treaties, which is a body of international legal principles, that regulate, at the most general level, questions about conclusion, validity, interpretation and practical application of all such international agreements. 4) Treaties facilitate international cooperation. International trade is a product of treaties. Treaties help to secure collective international goods like international peace and security, by allowing states to agree common standards of conduct. eg: refrain to use armed force in their international relations etc Treaties help in securing commercial bargains ( called synallagmatic treaties)

2. WHAT IS; A) A COVENANT? B) A PROTOCOL? C) A CONVENTION? D) A TREATY?A covenant, protocol, convention are all different names given for a treaty.

c) Charter - The term charter is used for particularly formal and solemn instruments such as the treaty founding an international organisation like the UN (the charter of the United Nations).

a) Protocol - It is a term used for an additional legal instrument that complements and add to a treaty. A protocol may be any topic relevant to the original treaty and is used either to further address something in the original treaty, address a new or emerging concern or add a procedure for the operation and enforcement of the treaty - such as adding an individual complaints procedure.

c) Convention - It is a formal agreement between states. The generic term convention is thus synonymous with the generic term treaty. Conventions are normally open for participation by the international community as a whole, or by a large no: of states. ( Convention on the Rights of The child adopted by the general assembly of the UN in 1989 etc)

d) Treaties are agreements governed by international law and concluded primarily between states. A

treaty is legally binding and parties to an international treaty are able to hold each other accountable for breaches. Agreements between states and Pvt.. individuals or corporations and agreements that states have decided that should not be governed by international law are not treaties.

3. WHO MAKES INTERNATIONAL TREATIES? HOW ARE THEY MADE? A person who is entitled to represent states makes treaties. This person needs to produce 'full powers' (i.e. an official document designating that person as a representative). Alternatively, certain officials are considered as representing their state without needing to produce full powers. These are: Heads of State or government and ministers of foreign affairs, heads of diplomatic missions and representatives of international organizations and conferences etc. The are five stages in the making of a treaty. 1)Negotiation - No prescribed mode of negotiation. The states enjoy considerable freedom to use their bargaining power to achieve a desirable effort. This does not mean that the states are free to wield their negotiation power. The use of threats of armed force or fraud in negotiation may make the treaty invalid.

2)Adoption - This is the stage when the content of the treaty is finalized and states begin to consider their position towards it.

3)Authentication -

4)Expression of consent to be bound - some sort of express consent needs to be made. A signature or ratification, acceptance, exchange of instruments etc.

5)Entry into force - This is the final stage in the making of any treaty. The treaty's entry into force makes the treaty binding between states that have expressed such consent.

4. UNDER PIL WHICH ENTITIES ARE ABLE TO ENTER INTO A TREATY?

5. WHAT IS THE DIFFERENCE BETWEEN A UNILATERAL AND MULTILATERAL TREATY? A unilateral treaty between 2 states are called bilateral treaty. Treaties between 2 or more states are called multilateral treaties. A unilateral treaty is a treaty meant for a single state. Usually done through reservation i.e. by excluding or modifying the legal effect of certain provisions of the treaty in their application to that state.

6. WHAT IS MEANT BY THE TERM PACTA SUNT SERVANDA?

Pacta sunt servanda means that treaties should be in good faith.

7. WHAT IS THE DIFFERENCE BETWEEN SIGNATURE AND RATIFICATION OF A TREATY?Signature and ratification are both methods of adoption, authentication and expression of consent to be bound of treaties. A signature is simple and direct method of expression of consent where as ratification involves the submission of the treaty for approval to the constitutionally competent branch of government.

8. HOW ARE TREATY PROVISIONS INTERPRETED? VCLT provides 2 interpretive rules1) a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context2)Interpreters may have recourse to the preparatory materials of a treaty (such as earlier drafts or records of negotiation) and the circumstances of its conclusion when the application of the basic principle is required to pay for peacekeeping costs as part of their normal contributions to the UN budget.

9. WHAT IS A “RESERVATION”? WHEN MAY A STATE LAWFULLY ENTER A RESERVATION? Reservation is a unilateral statement made by a state with the intention to exclude or modify the legal effect of certain provisions of the treaty in their application to that state. A state can lawfully enter a reservation when while signing, ratifying, accepting, approving or acceding to a treaty. The states may formulate reservations to a treaty except when (1) the treaty prohibits them (2) the reservation is not amongst those allowed by the treaty and (2) when reservation is incompatible with the 'object and purpose' of the treaty.

10. WHAT EFFECT DOES A RESERVATION HAVE UPON STATE OBLIGATIONS TO A TREATY? If the object and purpose of a treaty, or the limited no: of negotiating states suggests that preserving the integrity of the treaty is essential then the reserving state can only become party to that treaty if the reservation is accepted by all other parties. In other cases, the VCLT lays down 5 rules, 1) If a state accepts the reservation, then the reserving state and the accepting state can consider each other as parties to the treaty minus the reserved provisions 2) Just because a state objected to reservation does not mean that the states cannot be parties to the treaty, unless the latter clearly states an intention to the contrary.3) if an objecting state has not expressed a clear intention not to become a treaty partner with the reserving state, then the provisions to which the reservation relates will not apply as between the objecting state and the reserving state. 4) a reservation and the expression of consent it is attached to become effective as soon as one other state has accepted the reservation 5)states are deemed to have accepted a reservation if they do not raise an objection to it within 12 months from the date the reservation was notified to them. 11. WHAT IS THE PROCEDURE UNDER THE VCLT FOR CHALLENGING A RESERVATION?

12. HOW MAY A STATE LEGALLY JUSTIFY NON-ADHERENCE TO AN INTERNATIONAL TREATY OBLIGATION?A State may declare its expression of consent to be bound by a treaty invalid in the following situations: 1) when such consent was expressed in violation of its internal law regarding competence to conclude treaties but only when the violation was manifest and concerned a rule of internal law of fundamental importance. ( normally, a constitutional law) 2) when that state's consent was based on an error relating to a fact or situation which assumed by that state to exist at the time the treaty was concluded, except when that state contributed to its own error or the circumstances were such as to put it on notice of a possible error. 3)when consent has been induced by the fraudulent conduct of another negotiating state, or by corruption of a state's representative by another negotiating state. 4) when consent has been induced by the coercion of that state or its representatives by another negotiating state 5) when the treaty conflicts with a peremptory norm of international law (jus cogens).

13. CAN STATES WITHDRAW FROM A TREATY ONCE THEY HAVE RATIFIED IT? WHAT DOES THE VCLT SAY? States may lawfully terminate or suspend a valid treaty under certain conditions. 1) a treaty will terminate once it has achieved its objectives 2) if the treaty had provided that certain events or dates will entail termination or suspension.3)when all parties agree to terminate or suspend it 4)if the treaty does not provide for a right to terminate or suspend, the states cannot invoke it unless it is established that parties implicitly intended to allow it. 5)when there is a material breach by one party, the party has the right to terminate/suspend the whole treaty or to terminate/suspend it only in relation to the breaching party.6) states can terminate a treaty when its performance has become impossible

15. WHAT IS AN OBLIGATION ERGA OMNES? IN WHICH CASES DID THE ICJ SPEAK OF OBLIGATIONS ERGA OMNES? WHAT ARE THE IMPLICATIONS OF FINDING THAT A PARTICULAR OBLIGATION HAS THE CHARACTER OF AN ERGA OMNES RULE?

16. IS IT POSSIBLE FOR STATES TO MAKE RESERVATIONS IN RESPECT OF INTERNATIONAL HUMAN RIGHTS LAW TREATIES? WHAT DO THE GENOCIDE AND THE RAWLE KENNEDY CASES TELL US ABOUT RESERVATIONS TO HUMAN RIGHTS TREATIES?

17. WHAT IS THE TEST TO DETERMINE WHETHER A PARTICULAR RESERVATION IS LAWFUL OR NOT? IS THERE ANY INTERNATIONAL BODY THAT HAS THE JURISDICTION TO “SEVER” AN UNLAWFUL RESERVATION?

RESERVATIONS TO THE CONVENTION ON THE PREVENTIONAND PUNISHMENT OF THE CRIME OF GENOCIDE – ICJ Advisory Opinion

"I. Can the reserving State be regarded as being a party to the Convention while still maintaining its reservation if the reservation is objected to by one or more of the parties to the Convention but not by others?

a State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.

"II. If the answer to question I is in the affirmative, what is the effect of the reservation as between the reserving State and:(a) The parties which object to the reservation?(b) Those which accept it?

(a) if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention;

(b) if, on the other hand, a party accept the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention;

"III. What would be the legal effect as regards the answer to question I if an objection to a reservation is made:

(a) By a signatory which has not yet ratified?(b) By a State entitled to sign or accede but which has not yet done so?"

a) an objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I only upon ratification. Until that moment it merely serves as a notice to the other State of the eventual attitude of the signatory State;(b) an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so is without legal effect..The first question refers to whether a State which has made a reservation can, while maintaining it, be regarded as a party to the Convention on Genocide, when some of the parties object to the reservation.

In the absence of an article in the Convention providing for reservations, one cannot infer that they are prohibited.

In the absence of any express provisions on the subject, to determine the possibility of making reservations as well as their effects, one must consider their character, their purpose, their provisions, their mode of preparation and adoption.

The preparation of the Convention on Genocide shows that an undertaking was reached within the

General Assembly on the faculty to make reservations and that it is permitted to conclude therefrom that States, becoming parties to the Convention, gave their assent thereto.

What is the character of the reservations which may be made and the objections which may be raised thereto?

The solution must be found in the special characteristics of the Convention on Genocide. The principles underlying the Convention are recognised by civilised nations as binding on States even without any conventional obligation.

It was intended that the Convention would be universal in scope. Its purpose is purely humanitarian and civilising. The contracting States do not have any individual advantages or disadvantages nor interests of their own, but merely a common interest.

This leads to the conclusion that the object and purpose of the Convention imply that it was the intention of the General Assembly and of the States which adopted it, that as many States as possible should participate.

This purpose would be defeated if an objection to a minor reservation should produce complete exclusion from the Convention.

On the other hand, the contracting parties could not have intended to sacrifice the very object of the Convention in favour of a vague desire to secure as many participants as possible.

It follows that the compatibility of the reservation and the object and the purpose of the Convention is the criterion to determine the attitude of the State which makes the reservation and of the State which objects.

Consequently, question I, on account of its abstract character, cannot be given an absolute answer. The appraisal of a reservation and the effect of objections depend upon the circumstances of each individual case.

The Court then examined question II by which it was requested to say what was the effect of a reservation as between the reserving State and the parties which object to it and those which accept it.

No State can be bound by a reservation to which it has not consented, and therefore each State, on the basis of its individual appraisals of the reservations, within the limits of the criterion of the object and purpose stated above, will or will not consider the reserving State to be a party to the Convention.

In the ordinary course of events, assent will only affect the relationship between the two States. It might aim, however, at the complete exclusion from the Convention in a case where it was expressed by the adoption of a position on the jurisdictional plane: certain parties might consider the assent as incompatible with the purpose of the Convention, and might wish to settle the dispute either by special agreement or by the procedure laid down in the Convention itself.The disadvantages which result from this possible divergence of views are real. They could have been remedied by an article on reservations. They are mitigated by the common duty of the contracting States to be guided in their judgment by the compatibility or incompatibility of the reservation with the object and purpose of the Convention. It must clearly be assumed that the contracting States are desirous of preserving intact at least what is essential to the object of the Convention.

The Court finally turned to question III concerning the effect of an objection made by a State entitled to sign and ratify but which had not yet done so, or by a State which has signed but has not yet ratified.

In the former case, it would be inconceivable that a State possessing no rights under the Convention could exclude another State. The case of the signatory States is more favourable. They have taken certain steps necessary for the exercise of the right of being a party. This provisional status confers upon them a right to formulate as a precautionary measure objections which have themselves a

provisional character. If signature is followed by ratification, the objection becomes final. Otherwise, it disappears. Therefore, the objection does not have an immediate legal effect but expresses and proclaims the attitude of each signatory State on becoming a party.

Week 5Customary International Law & Other Sources of PIL

1. What is CIL? CIL is a system of rules and it is derived from the observable practice of states.

2. What are the constituent elements of CIL? What elements did the ICJ set out in detail in the Nicaragua Merits Case?

The two constituent elements of CIL are called: state practice and opinio juris. In the North Sea Continental Shelf case (which concerned a dispute between Germany v. Netherlands & Denmark) the ICJ held that in order for a practice to be a CIL, the act concerned must not only be a settled practice but they must be carried out because of a belief that this practice is obligatory by the existence of a rule of law requiring it.

3. What kind of acts can be considered to constitute state practice? Give some examples.

4. Does state practice require absolute conformity with a rule? What has the ICJ stated in this regard? 5. What does the term opinio iuris actually mean?

6. Is there such a thing as a “persistent objector” in PIL? Which case(s) has the ICJ referred to the concept of the persistent objector? Why would international human rights lawyers have a problem with this concept?

Yes, there is a theory called persistent objector theory. This theory claims that states have an 'opt-out' option, i.e. an individual state which objects to a rule persistently and from the very beginning will not be bound by that rule, even if it becomes part of CIL

7. What is meant by the term “regional custom”? Can you identify a rule of “regional custom”?

8. What approach does the ICJ follow when attempting to identify the creation, change and modification of CIL?

9. Who is bound by CIL?

10. What is the relationship between treaty law and CIL? What has the ICJ said about this relationship and in which particular cases?

Treaties can become custom, customary rules can be codified into treaties, and sometimes a single rule can have force simultaneously both treaty and customary law.

11. What does the term jus cogens mean? What is the value of determining that a rule has the status of jus cogens?

Jus cogens are higher-order, non-derogable norms; they have the power to annul international laws

that are contrary.

12. What is an obligation erga omnes? In which cases did the ICJ speak of obligations erga omnes? What are the implications of finding that a particular obligation has the character of an erga omnes rule? 14. What is “instant custom”?

Week 6Jurisdiction, International Adjudication & Tribunals

Jurisdiction is the government’s general power to exercise authority over all persons and entities within its territory. Jurisdiction is closely related to, and stems from, the principle of state sovereignty and sovereign equality and independence of states from non-interference in its internal affairs.Jurisdiction covers(1) the state legislature’s right to create, amend or repeal legislation: we called this prescriptive jurisdiction (legislative powers),(2) the state’s right to enforce this legislation through, for example, the police and public prosecutors, by investigating a crime and arresting a suspect: we called this enforcement jurisdiction (executive powers), and(3) the ability of national courts, tribunals and other bodies or persons exercising judicial functions to hear and decide on matters: adjudicative jurisdiction.

Prescriptive and Enforcement Jurisdiction: Territorial and Extraterritorial ApplicationA State has unlimited prescriptive jurisdiction: this means that the legislature can create, amend or repeal legislation covering any subject or any person, irrespective of the person’s nationality or location. The ICJ stated that “In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty (para 47 of the Lotus case).”At the same time, international law does not allow a state to enforce its legislation outside its territory without an international agreement or a rule of customary international law permitting the state to do so.For example, state A’s law says: adultery is an offence that is punishable by death. This law is enforceable in the territory of state A; but, state A cannot enforce that law in state B even against a citizen of state A. This means, for example, that state A cannot investigate the crime or arrest the accused in state B’s territory without state B’s consent.The 2 Principles of the Lotus Case

1. This brings us to the first principle in the Lotus case – A State cannot exercise its power in any form in the territory of another State; unless, unless  an international treaty or customary law permits it to do so. 2.  The second principle of the Lotus case: within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of international law permitting it to do so . In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law. In this case, the crime was committed abroad, neither the person who committed the crime, nor the victims, were nationals of that State. Universal jurisdiction enables a person to be tried before a national court even when there is no link to the State. Under this principle, jurisdiction is exercised on the basis that the crime committed is so serious and of universal concern that each State has an interest to prosecute. In other words, these crimes are punishable by any State.Universal jurisdiction is a developing concept in international law and its scope, method of application and extend of application is controversial. Universal jurisdiction was exercised in:▪ the Pinochet Case, House of Lords in UK exercised universal jurisdiction on the basis that Pinochet was responsible for acts of torture at the time he was the head of State in Chile.

▪ Public international law is the body of rules that is legally binding on States in their interactions with other States, individuals, organizations and other entities. It covers a  range of activities; such as, diplomatic relations, conduct of war, trade, human rights and sharing of oceanic resources

▪ Traditionally,  international law regulated interactions between States. For example, it determined how a State should treat foreign diplomats who are in its country or when a State should declare war against another State.International law sets out legal obligations, responsibilities and rights of one State against another. This aspect of international law is based on sovereign equality. In other words, each State is a sovereign and each State is equal and independent of all other States. This means that when international law regulates the relations between States, it applies equally to all States.

▪ International law also regulates relations between States and non-State actors; for example, individuals, international organizations and multinational companies. In the case of individuals, international law gives each individual certain rights. For example, international human rights law gives the individual a right not to be tortured. This means that a government cannot torture even someone they deem a terrorist to obtain information. International law also imposes on States certain obligations and responsibilities to protect individuals. For example, when States are at war, one State cannot target and kill innocent civilians of another State.It important to remember that international law is not stagnant. It is evolving. International law covers diverse subjects and has multiple fields of application. For example, we find that international law applies, inter alia, to:  initiation of wars (laws relating to use of force); conduct of war (humanitarian law); diplomatic relations (diplomatic law); trade and investment; treatment of people (human rights law); ocean resources (law of the sea); protecting the environment (environmental law),  space law, and to certain crimes (international criminal law).

Subjects of international law are States and non- State actors like individuals and international organizations. Some argue that international non-governmental organizations and multinational companies also fall into the category of subjects of international law.

HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT OF INTERNATIONAL LAW?▪ An entity is a subject of international law if it has “international legal personality”. In other words, subjects must have rights, powers and duties under international law and they should be able to exercise those rights, powers and duties. The rights, powers and duties of different subjects change according to their status and functions. For example, an individual has the right of freedom from torture under international law and States have a duty under international law not to torture individuals or to send them to a country where there is a likelihood of that person being tortured. This right is a right under treaty law, for example, the International Covenant on Civil and Political Rights and under customary international law. The Convention against Torture and Cruel, Inhuman and Degrading Treatment places obligations on States not to torture and to extradite or prosecute those who torture. ▪ Legal personality also includes the capacity to enforce one’s own rights and to compel other subjects to perform their duties under international law. For example, this means that a subject of international law should be able to:(1) bring claims before international and national courts and tribunals to enforce their rights, for example, the International Court of Justice.(2) have the ability or power to come into agreements that are binding under international law, for example, treaties:(3) enjoy immunity from the jurisdiction of foreign courts; for example, immunity for acts of State.(4) be subject to obligations under international law (Dixon).Remember that all subjects of international law do not have the same rights, duties and capacities. For an example, a diplomat has immunity before foreign courts because he is an agent of the sending State.

Week 8The Law of International Organisations

Certain Expenses Concerning U.S. Military Operations Against Libya

The question of certain expenses of the United Nations (Article 17, paragraph 2, of the Charter) had been put to the Court for an advisory opinion by a resolution adopted by the General Assembly of the United Nations of 20 December 1961.

By nine votes to five the Court declared that the expenditures authorized in certain General Assembly resolutions enumerated in the request for opinion, relating to the United Nations operations in the Congo and in the Middle East undertaken in pursuance of Security Council and General Assembly resolutions likewise enumerated in the request were "expenses of the Organization" within the meaning of Article 17, paragraph 2, of the Charter of the United Nations.In its canonical Certain Expenses advisory opinion of 1962, the International Court of Justice made clear that military activity carried out by member states in the context of peace keeping operations in the Congo and along the Suez authorized by the General Assembly amounted to United Nations activities, which were therefore to be treated as expenses of the United Nations, funded from member contributions.   France and the Soviet Union objected to U.N. involvement in peacekeeping in the Middle East and Congo, but they could not legally withhold their required contributions to the United Nations on account of those objections.  United Nations skeptics might retort that even though the I.C.J. is the judicial arm of the United Nations, the U.N. has no concrete power to enforce an advisory opinion, and even I.C.J. judgments cannot be enforced against a recalcitrant state absent a Security Council Resolution authorizing sanctions against that non-complying state.  And yet both France and the Soviet Union eventually paid the money they had withheld from the U.N. in protest against U.N. action in the Suez and Congo, much as the United States finally paid its assessed contributions after much protest against U.N. policies in the late 1970s, the 1980s, 1990s and 2000s.

Difference relating to the Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ Advisory Opinion, 1999

He is an expert under S 22(b) He spoke in the course of performing his mission. He had a right to be immune. It case where A VI, S 22 of the general convention to special rapporteurs. It could have applied. Malayasia had a legal obligation. It violated A 105 of the UN charter as it failed to inform its court of the psiition taken by the secretary-general. According to the well-estabished rule of international law, the conduct of any organ of a state must be regarded as an act of that State. Malaysia did not comply with the above mentioned obligation.The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and its codification. On November 21, 1947, the UN General Assembly passed Resolution 174, which provided for the creation of an "International Law Commission" in order to fulfill the obligations of the Charter. Promoting the codification of international law. Solving problems within both public and private international law.

The Commission consists of 34 members elected by the General Assembly. Members act as individuals and not as officials representing their respective states. One venue of action for the commission in the codification of principles of international law is when requested to do so by the General Assembly. In that case, the commission appoints one of its members as Special Rapporteur on that subject and prepares a plan of work regarding the issue in question. Governments are requested to submit to the commission their written opinions on the issue in question, as specified in the plan of work. The rapporteur then writes a report of his or her recommendations on the subject under discussion and the report must be approved by the rest of the commission as well as by the UN Secretary-General before it becomes an official commission document. The commission then reconsiders the report after receiving additional written opinions from governments, and the report is being submitted to the General Assembly for approval.Another venue of action is when the commission is requested either by a government, an inter-governmental organization or a UN agency to draft proposals for international conventions on various issues. In that case, the commission formulates a plan of work and receives written opinions from governments on the issue in question. The final draft is also submitted to the General Assembly.The United Nations (UN) is an intergovernmental organization established on 24 October 1945 to promote international co-operation. A replacement for the ineffective League of Nations, the organization was created following the Second World War to prevent another such conflict. At its

founding, the UN had 51 member states; there are now 193. The UN Headquarters is situated in Manhattan, New York City and enjoys extraterritoriality. Further main offices are situated in Geneva, Nairobi and Vienna. The organization is financed by assessed and voluntary contributions from its member states. Its objectives include maintaining international peace and security, promoting human rights, fostering social and economic development, protecting the environment, and providing humanitarian aid in cases of famine, natural disaster, and armed conflict. The UN has six principal organs: the General Assembly (the main deliberative assembly); the Security Council (for deciding certain resolutions for peace and security); the Economic and Social Council (ECOSOC) (for promoting international economic and social co-operation and development); the Secretariat (for providing studies, information, and facilities needed by the UN); the International Court of Justice (the primary judicial organ); and the United Nations Trusteeship Council (inactive since 1994). The UN Charter outlines the rules for membership:

1. Membership in the United Nations is open to all other peace-loving states that accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. Chapter II, Article 4The UN Charter outlines the rules for membership:1. Membership in the United Nations is open to all other peace-loving states that accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. Chapter II, Article 4The Maastricht Treaty established the European Union under its current name in 1993.

The EU has developed a single market through a standardised system of laws that apply in all member states. Within the Schengen Area, passport controls have been abolished.[17] EU policies aim to ensure the free movement of people, goods, services, and capital,[18] enact legislation in justice and home affairs, and maintain common policies on trade,[19] agriculture,[20] fisheries, and regional development.[21]

The monetary union was established in 1999 and came into full force in 2002. It is currently composed of 18 member states that use the euro as their legal tender. EU member states retain all powers not explicitly handed to the European Union. In some areas the EU enjoys exclusive competence. These are areas in which member states have renounced any capacity to enact legislation. In other areas the EU and its member states share the competence to legislate. While both can legislate, member states can only legislate to the extent to which the EU has not. In other policy areas the EU can only co-ordinate, support and supplement member state action but cannot enact legislation with the aim of harmonising national laws.The International Committee of the Red Cross (ICRC) is a humanitarian institution based in Geneva, Switzerland and a three-time Nobel Prize Laureate. States parties (signatories) to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 (Protocol I, Protocol II) and 2005, have given the ICRC a mandate to protect victims of international and internal armed conflicts. Such victims include war wounded, prisoners, refugees, civilians, and other non-combatants.[3]

The ICRC is part of the International Red Cross and Red Crescent Movement along with the International Federation of Red Cross and Red Crescent Societies (IFRC) and 189 National Societies.[4] It is the oldest and most honoured organization within the Movement and one of the most widely recognized organizations in the world, having won three Nobel Peace Prizes in 1917, 1944, and 1963. All payments to the ICRC are voluntary and are received as donations based on two types of appeals issued by the Committee: an annual Headquarters Appeal to cover its internal costs and Emergency Appeals for its individual missions.The World Trade Organization (WTO) is an organization that intends to supervise and liberalize international trade. The organization officially commenced on 1 January 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade (GATT), which commenced in 1947.[5] The organization deals with regulation of trade between participating countries; it provides a

framework for negotiating and formalizing trade agreements, and a dispute resolution process aimed at enforcing participant's adherence to WTO agreements, which are signed by representatives of member governments[6]:fol.9–10 and ratified by their parliaments.[7] Most of the issues that the WTO focuses on derive from previous trade negotiations, especially from the Uruguay Round. WTO's current Director-General is Roberto Azevêdo,[11][12] who leads a staff of over 600 people in Geneva, Switzerland.[13] A trade facilitation agreement known as the Bali Package was reached by all members on 7 December 2013, the first comprehensive agreement in the organization's history.[14][ The process of becoming a WTO member is unique to each applicant country, and the terms of accession are dependent upon the country's stage of economic development and current trade regime. [61] The process takes about five years, on average, but it can last more if the country is less than fully committed to the process or if political issues interfere. The shortest accession negotiation was that of the Kyrgyz Republic, while the longest was that of Russia, which, having first applied to join GATT in 1993, was approved for membership in December 2011 and became a WTO member on 22 August 2012. The WTO has 159 members and 25 observer governments.[69] In addition to states, the European Union is a member. WTO members do not have to be full sovereign nation-members. Instead, they must be a customs territory with full autonomy in the conduct of their external commercial relations. Thus Hong Kong has been a member since 1995 (as "Hong Kong, China" since 1997) predating the People's Republic of China, which joined in 2001 after 15 years of negotiations.

Week 11The Collective Security System and the Use of Force Under International Law

One of the primary goals of the UN, according to Article 1(1) of the UN Charter, is to maintain international peace and security. In order to achieve this aim, Article 2(4) contains a prohibition on the use of force. A system of collective sanctions against any offending State that resorts to the use of force protects this prohibition. These sanctions are found in Articles 39-51 of the UN Charter.PROVISIONS RELATING TO THE USE OF FORCE: THE PROHIBITION AND THE EXCEPTIONSArticle 1(1) of the UN Charter says that one of the purposes of the Charter is to:To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of (1) threats to the peace, and for the (2) suppression of acts of aggression or (3) other breaches of the peace, and to bring about by peaceful means… adjustment or settlement of international disputes or situations which might lead to a breach of the peaceIn order to maintain international peace and security and to prevent future wars:(1)  Article 2(3) places an obligation on member States to settle their disputes peacefully.All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.(2) Article 2(4) prohibits member States from using force in their international relations.All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.▪ In Nicaragua v USA, ICJ held that the prohibition on the use of force is covered by treaty law (that is the UN Charter), by customary international law and the prohibition was a Jus Cogens norm.In the 1970 Declaration on Principles of International Law concerning Friendly Relations there is: (1) a general prohibition on the threat or use of force, (2) duty to refrain from “organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory” when these acts involve the threat or use of force against another State.(3)  The prohibition is safeguarded by a system of collective sanctions against any offending State that uses force. This is found in Articles 39-51 of the UN Charter.3.1. Articles 39, 40 and 41 operate to offer sanctions against a member State that has threaten or used force in a way that it amounts to a threat to or breach of peace or an act of aggression. Article 39 says:The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.Article 41 allows the Security Council to impose sanctions (trade and economic sanctions, arms

embargoes):The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.3.2. Article 42 gives the Security Council the power to authorize the use necessary force to maintain international peace and security. Because the Security Council does not have a military force of its own, the Security Council authorizes member States to use force.The Security Council] may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.3.3. Article 51 provides for a member State to use force in self defense when there is an armed attack against that StateNothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security…

The only exceptions to the prohibition on the use of force in the UN Charter are found in Articles 42 and 51 of the UN Charter (provisions in Article 53(1) and 107 are not relevant addition to this, States have invoked customary international law of self defense and humanitarian intervention (for example in the 11 day NATO bombing of Kosovo) and implicit authorization under SC Resolutions (for example, NATO bombing of Kosovo and US invasion of Iraq) as a justification to use force against another State.

Article 2(4) of the UN Charter provides:All Members shall refrain in their international relations from the threat or use of force against the territorial integrity (TI) or political independence (PI) of any state, or in any other manner inconsistent with the Purposes of the United NationsThe following acts can be considered as a “threat” to use force:(1) military exercises on the border;(2) hostile statements of future invasionsUse of force can be seen in:(1) direct force: cross border shooting or military incursions;(2) indirect force: States are prohibited from organizing, assisting, instigating or participating in civil strife or terrorist acts against another State or acquiescing in organized activities when these activities are threaten or use force against another State. For example, arming and training of rebels amount to use of force, while funding the rebels will not (Nicaragua case). 

The chart shows the procedure to be followed when a state uses force against another state.

Article 24 of the Charter says the primary responsibility of maintaining international peace and security is with the Security Council. The Security Council can take measures that are binding on member States. Article 25 says:The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.The General Assembly (GA) cannot take measures that are binding on States. GA cannot make recommendations on a dispute or situation when the Security Council is discussing it (Article 12 of the

Charter). Article 10 says:The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.In the Palestinian Wall Case, the ICJ held that the Security Council’s authority to maintain international peace and security was ‘primary’ but not ‘exclusive’.The GA, under the Uniting for Peace Resolution, can discuss and make recommendations on matters even when the Security Council is discussing them. Under this Resolution, the GA (1) referred the Palestinian Wall Case to the ICJ for an Advisory Opinion and (2) sent a Peacekeeping force to Egypt after the Suez canal crisis in 1956 (even though the SC was simultaniously discussing these matters).

Collective use of force is the use of force following Security Council authorization.Under Article 53 of the Charter SC can also authorize regional organizations such as NATO, OAS, OAU to take enforcement measures. E.g.: In 1995, SC authorized NATO to take ‘all necessary measures’ to oversee the General Framework Agreement for Peace in Bosnia and Herzegovina.

->1st exception to this general prohibition of use of force - Article 42 gives the Security Council the power to authorize the use necessary force to maintain international peace and security.->2nd exception : right of self defence Right of self defence (SD) can be both individual self defence (victim State against the aggressor State) and collective (victim State + friendly States against the aggressor State). The right to self defence is found in treaty law (UN charter) and in CIL. Self defence that takes place without SC authorization is a type of unilateral use of force (we learnt that this would be called collective use of force, if SC authorizes the use of force, ).Article 51 provides for a member State to use force in self defense when there is an armed attack against that State:Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council (SC) has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the SC…What is an armed attack and who can carry out an armed attack?In Nicaragua case ICJ says an armed attack is: (1) action by regular State armed forces across an international border; (2) armed groups, irregular forces and mercenaries when (a) they are “sent by or on behalf of a State” to carry out an armed attack against another State and (b) the attack is of such gravity  so that it amounts to an armed attack if it was conducted by regular armed forces of a State (The Court referred to Article 3(g) of the GA Resolution on the Definition of Aggression and said this reflected CIL). Note that State “B” does not have a right of SD against State “A”: even if rebels carried out an armed attack against State “B”; unless, these rebels was sent by or on behalf of another State (State “A”).What is not an armed attack according to the ICJ in the Nicaragua case?If State “A” supplies of weapons and logistical to a rebel group, which the rebel groups use to attack State “B” – can the supply of weapons and logistical support be considered as an armed attack by State “A” against the State “B”? In Nicaragua Case the court said NO. The Court said this may amount to a threat or use of force or intervention in the affairs of another State but it was not an armed attack. This means that State B does not have the right of SD against State “A” under Article 51 of the Charter because an armed attack has not occurred.- Mere frontier incidents are not “armed attacks” if the necessary “scale and effects” are not there.- When can a State use force in SD according to Article 51?- An armed attack has to have occurred against a member State- SD is only available against the aggressor State (the one who carried out or on whose behalf an armed attack was carried out) by the victim State (subject of the attack). - The only way a third State will have a right of SD against the aggressor State is if the victim State asks for the help of the third State (we call this collective self defense).(Nicaragua case) - Any use of force in SD must be necessary and proportionate to the armed attack. (Nicaragua case & advisory opinion of the ICJ on the legality of the threat or use of force) - A State that uses force in SD must immediately inform the SC and this State can use force only until the SC steps in.

- In addition to the treaty right of SD, some argue that there is also a CIL right to SD. They argue that the Charter never intended to restrict the CIL right of SD (which is more wider than the right under A. 51) and that the reference to the “inherent right” of SD in Article 51 brings in the CIL right of SD into Article 5.

- CIL right of SD

A State can use SD when its (1) necessary: that is to say that the threat or use of force is instant, overwhelming, leaving no choice (no alternatives) and no moment of deliberation and (2) proportionate to the threat or use of force. (This position was formulated after the Caroline Incident that took place in 1837 when the British sank a ship with insurgents in American territory and after British citizen was charged for sinking the ship.) Under CIL a State use SD:-When an armed attack occurred-In anticipation of an armed attack or threat to State security: consider what we did on the recent US attack on Iraq based on the alleged existence of nuclear weapons (WMD). This was justified by US as “anticipatory SD” (this is also called “preemptory self defense)- In response to an attack or threat of attack against State interests (nationals and property of the State). - where the “attack” doesn’t involve the use of force and involves, instead, economic aggression that is instant and overwhelming.The Caroline incident is generally regarded as the reference point for any discussion on self-defence, as well as the criteria governing its use. In 1837, US Secretary of State Daniel Webster articulated a definition of self-defence, which evolved into customary international law. Webster’s definition followed what has come to be known as the Caroline incident. The Caroline was a US steamboat attempting to transport supplies to Canadian insurgents.  A British force interrupted the Caroline’s voyage, shot at it, set it on fire and let it wash over Niagara Falls. Webster said that Britain’s act did not qualify as self-defence because self-defence is only justified “if the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” This incident is important primarily for the following reasons: First, to limit self-defence to situations where the threat is real, the response is essential and proportional, and peaceful means have been exhausted. Article 51 further narrowed self-defence, permitting it only in case of an armed attack. Second, it laid down the general framework for exercising self-defence, including anticipatory self-defence. Acceptance by British and American governments of self-defence as relevant in situations of necessity in anticipation of a threat of attack which was ‘instant, overwhelming, leaving no choice of means and no moment for deliberation’ clearly indicates that anticipatory self-defence formed part of traditional customary law.  Third, reference to this general framework by the Nuremberg and Tokyo Tribunals demonstrate that they were still considered customary law, as the Charter was being framed. As most authorities accept this as a given and since there is no evidence that the Caroline framework has been replaced by conventional law, we can safely assume that ‘Caroline’ still forms part of the customary law relating to self-defence. This, then permits States to respond to a threat and infringe on the territorial sovereignty of another nation when: (i) it is acting in self-defence, (ii) the attack is substantial, (iii) the offending nation is unable to prevent further attacks and (iv) the attack is widespread and imminent‘necessity’ in Webster’s formulation denotes something instant, imminent and choice of means and no moment for deliberation” they destroyed the American boat Caroline , which had carried supplies to Canadian excessive, since the act justified by the necessity of self-defence must be limited by group of British soldiers entered the United States from Canada, their aim being to immediate, these two elements have been joined by a third, that of imminence. In early nineteenth century Canada, which, at the time, was still under British rule, anti-British attacks were being conducted throughout the country. In 1837, a small insurgents in the north. The Caroline was set alight and left to drift down river, at invoking the right of self-defence, arguing that the Caroline would continue to least one American being killed in the process. The British justified their actions by right to self-defence, either in anticipation or otherwise, would therefore be valid Secretary of State Daniel Webster set out the basic elements of the right, stating stated further that the use of force should not involve “anything unreasonable or supply the Canadian rebels otherwise. Accepting this explanation, the then American that necessity and kept clearly within it” .The customary that there should be a “necessity of self-defence, instant, overwhelming, leaving no when the requirements of necessity and proportionality are

fulfilled.

In the Nicaragua case, the Court stated, that “the Charter itself testifies to the existence of the right of collective self-defence in customary international law” and that “the exception to the prohibition of force constituted by the right of individual or collective self-defence [is] already a matter of customa ry international law” .While the Court remained silent on the issue of pre-emptive or anticipatory self-defence, its comments are still evidence that Webster’s formulation of the customary law rules (which permit anticipatory self-defence) are still valid in international law. A right to anticipatory self-defence may therefore arise under the Caroline elements, despite being precluded by Article 51.

3 possible interpretations of the right to self defense 1)strict interpretation - for a state to be bale to use the right to self-defence, an armed attack must actually occur. -> bomb must hit the ground2)2nd interpretation (pre-emptive self -defense)-An armed attack might not have happened, but all the evidence shows that it will occur and waiting for it would be too costly. 3)3rd interpretation -They believe the notion of pre-emptive self-defence includes the right to defend themselves against potential threats too.

Force used should be proportional too. you cannot destroy a village for a destruction of a sea vessel.

Drones are battle field weapons which serve as launch vehicles for delivering bombs and missiles. they are weapons for military operations. Since they are battle field weapons , laws which govern the use of drones are the legal regime govenring the military force. There are 3 main components -1)Jus ad bellum - the laws which govern the initial resort to military force. This is the UN charter. Charter lays down a general prohibition, use of military force should be the last resort. Could be used only for the exceptions i.e. for the use of self defence or with the security council's authorization. principles of necessity and proportionality. 2)Jus in bello - it governs the conduct of armed force3)Human rights law that apply at all times (jus cogens)

A tarket killing canonly be something other than an extrajudicial execution—that is, a murder—if• It takes place in an armed conflict;• The armed conflict is an act of self-defense within the meaning of the UNCharter, and• It is also an armed conflict within the meaning of IHL; and finally,• Even if it is an armed conflict under IHL, the circumstances must not permit application of international human rights law, which would require an attempt toarrest rather than targeting to kill.

Because1. Describe the main features of the collective security system envisaged by the UN Charter.

2. What is the role of the UN Security Council?

3. What is the role of the UN General Assembly?

4. Article 2(4) of the UN Charter prohibits the use of force in international relations. Are there any exceptions to this general prohibition?

5. Under what circumstances may states lawfully use self-defense? Is there a difference between the treaty law and CIL relating to self-defense? 6. What are the preconditions for an act of self-defense to be lawful? What famous dictum was

set out in the Caroline case?

7. Is anticipatory self-defense lawful? Explain it in the context of the drone warfare in Pakistan and the death of Anwar al-awlaki as a US citizen.

8. Is the use of nuclear weapons lawful? What did the ICJ rule in the Nuclear Weapons Advisory Opinion?

9. What is “humanitarian intervention”? Is it a lawful exception to Article 2(4)? Should it be? What do you think of the opinion of the ICJ as set out in the Preliminary objections in the Legality of the Use of Force (Serbia and Montenegro v. Belgium)?

10. Discuss the legality of the following interventions: - The 1971 Bangladesh war and India’s ‘self-defense’ - The US intervention into Nicaragua 1979-1980? - The NATO intervention in Kosovo (Operation Storm) in 1999? - The NATO intervention into Afghanistan (Operation Enduring Freedom), 2001-present? - The US & Others invasion of Iraq (Operation Iraqi Freedom) 2003? - The armed activities of Ugandan forces and paramilitaries in the territory of the Congo?- The 2011 military intervention into Libya?

Week 12International Humanitarian Law

International Humanitarian Law (IHL) is the branch of international law that provides the rules that regulate the conduct of armed conflict. It is the body of law that regulates the conduct of hostilities by all parties to a conflict once an armed conflict has commenced. IHL is also called jus in bello. It is different from just ad bellum which the law governing the use of force which concerns the legality of decisions about going to war.

It provides detailed rules that regulate the means and methods of warfare and whichaim to protect those persons that are not taking part in a con!ict, including civiliansand soldiers that are out of action (also called hors de combat ). What does IHL regulate?Modern IHL is concerned with six central topics:1. permissible use of weapons and military tactics;2. protection of those who can no longer fight (wounded, sick and shipwrecked troops,prisoners of war);3. the duties and rights of neutral parties to a conflict;4. rules regulating occupation;5. the protection of people who do not take part in the fighting (e.g. civilians, medics, andaid-workers);6. the protection of cultural, religious sites, and the environment.

The order of these six topics reflects the historical progression of IHL, which is coined as the ‘humanization’ of IHL (Meron 2000). The humanization of IHL, that is the increasing focus on the humanitarian protection function of IHL, is reflected both in the changes in the name of the topic and the development of its substance. IHL was traditionally referred to as the ‘laws of war’ or ‘the international law of armed conflict’.

the IHL treaties, the Hague Regulations, the four Geneva Conventions, andtwo Additional Protocols of 1977 together stand out.

Customary IHL is important because it establishes which rules apply to all states regardlessof their ratification status of the myriad of IHL treaties

International Committee of the Red Cross (ICRC)

The nature of IHL as a body of international law is unique due to a number of its institutional features. These are, the actor- centric nature of IHL; the existence of two sets of rules for international and internal conflicts; and the incorporation of a non- state actors, and the International Review of the Red Cross, in its implementation.

IHL challenges international relations and law approaches that view states as unitary actors and international law as only regulating relationships between states. IHL regulates the conduct of all actors that are involved an armed conflict: these actors may be states (be it as " fighting parties or neutral observers), but they may also be any individual or group of individuals of any nationality that are involved in an armed conflict—e.g. rebel groups, soldiers, medical officers, civilians, or non- governmental humanitarian organizations.

IHL challenges international relations and law approaches that view states as unitary actors and international law as only regulating relationships between states. IHL regulates the conduct of all actors that are involved an armed conflict: these actors may be states (be it as fighting parties or neutral observers), but they may also be any individual or group of individuals of any nationality that are involved in an armed conflict—e.g. rebel groups, soldiers, medical officers, civilians, or non- governmental humanitarian organizations.

The fact that IHL creates obligations not only for states, but also for individuals.

International and internal armed conflicts

Due to the resistance to regulate internal conflicts, IHL has different rules that are applicable in international and non- international (internal) armed conflicts. In particular, states regard dissidents as criminals rather than combatants. It is for this reason that no prisoner of war status exists in internal armed conflicts. the rules that govern non- international con!icts are less developed and weaker thanthose applicable to international armed con!icts.

IHL and the International Committee of the Red Cross (ICRC)

Another unique element of IHL is that it is the only body of international law that provides a special status and role to an international humanitarian organization. The 1949 Geneva Conventions task the International Committee of the Red Cross (ICRC) to play a major role in encouraging compliance with IHL and it is recognized in treaty law as having the authority to visit prisoners, organize relief operations, reunite separated families, and carry out other humanitarian activities during armed conflicts. Many states recognize the international legal personality of theICRC and accord it privileges and immunities under their domestic laws.

IHL basic principles: military necessity• Parties to a confl ict are allowed to do whatever is necessary to win the war (in linewith IHL).• The only legitimate object of war is to weaken the military force of the enemy.• Military necessity cannot be invoked as a reason for violating IHL.• There must be a balance struck between humanity and military necessity.

One of the central purposes and features of IHL is to limit human suffering and protect innocent victims of conflict and out- of- action fighters (hors de combat).

IHL basic principles: protection of humanity and the prohibition of superfluous injury and unnecessary suffering• All human beings must be treated with humanity and parties must respect human dignity. The principle of humanity means that parties to a conflict are not, for example, able to kill and main at random, ethnically cleanse populations, forcibly displace civilians, burn down religious monuments, torture, use sexual violence as a weapon of war, or use cruel, inhumane, or degrading treatment of any kind against any human being.• Although the killing of combatants is allowed, IHL prohibits inhumane and painful ways of killing (e.g. drowning and torture).• Some weapons have been outlawed as they cause superfluous injury and unnecessary

suffering (e.g. chemical, biological, and poisonous weapons, expanding and exploding bullets, and weapons primarily causing injury by non- detectable fragments).

IHL basic principles: the principle of distinction and proportionality• In order to protect humanity armed forces are required to distinguish between military and civilian targets and they are only allowed to direct their operations against military objectives.• IHL prohibits the direct targeting of civilians and civilian targets such as schools, religious buildings, patrimonial sites, and hospitals.• A party to the conflict may only target a civilian object in exceptional circumstances where there is clear evidence that a civilian object is being used for military purposes and where it can justify an attack on the basis of military necessity. Any such attack must be proportionate to the aim.• In modern non- international conflicts, civilians and military targets are often not easy to distinguish, for example, where fighting is carried out by rebels that operate out of densely populated civilian areas.• IHL obliges all parties to a conflict to ensure that their actions are proportional to the military aim.• A disproportionate attack is ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combinationthereof, which would be excessive in relation to the concrete and direct militaryadvantage anticipated’ (Protocol 1 Article 51).THE HIERARCHY OF RULES IN INTERNATIONAL LAW: JUS COGENS

Differences between national and international legal orderNational systems- hierarchy of sources (usually: constitution, laws, regulations)- hierarchy of legal rules produced through such sources (a law may not contradict the constitution, a regulation may not contradict a law, and a fortiori, the constitution)Traditional international law- custom and treaties are on an equal footing- lack of hierarchy of sources and rules deriving from such sources- freedom of States to alter custom or treaty rules to suit their interests

Today, there is still no hierarchy, but a class of general customary rules has acquired the special status of peremptory norms.

Jus Cogens- Emergence of jus cogens can be traced to the late 60s and rests upon the idea that a certain category of law that derives from reason and humanity (natural law) should prevail over man-made law (consent-based law)- the establishment for peremptory norms was a result of the initiatives of socialist and developing countries- The compromise reached between the proponents of jus cogens and the countries that opposed the idea resulted in the affirmation of jus cogens norms, subject to the strict condition that a judicial mechanism for determination of peremptory norms be established. This mechanism was imbedded in the I.C.J. and the result was that any State invoking jus cogens should be ready to submit the issue for determinations to the I.C.J.

Establishment and Scope of Jus Cogens- Vienna Convention 1969, Art. 53 and Art. 64 - do not exactly define jus cogens but do establish its character of a peremptory norm with the effect that no other rule of international law may derogate to it (Art. 53) and if a peremptory rule emerges that is contrary to an existing custom or treaty, such custom or treaty become void and terminate (Art. 64) - Vienna Convention 1986, Articles 66(a) and 66.2 provide that in cases of dispute regarding the actual content of jus cogens and, where parties may not resolve their differences through negotiation or agree to arbitration, parties shall submit their dispute to the I.C.J..- Is universal acceptance of a norm as being peremptory necessary for its formation? (It is enough for a large majority of representative States to recognize such rule as part of jus cogens. It is safe to contend that all Major Powers should assent to such rule).

Examples of Peremptory Norms

- The current state of affairs shows no state practice, with the accompanying opinio juris of the peremptory character of certain norms, although there is consensus among States, at the level of opinio juris or opinio necessitas regarding the existence of peremptory international rules- Art. 19 ICL Draft Articles on State Responsibility gives some clues as to which principles or rules might belong to jus cogens - (refers to international obligations so essential for the protection of fundamental interests of the international community that their breach shall be recognized as a crime by that community as a whole; e.g. prohibition of aggression; slavery, genocide, apartheid; forceful colonization; massive environmental pollution)- Prohibition of use or threat of force – can be inferred from UN SC resolution condemning the annexation of Kuwait by Iraq by declaring it null and void- Ban on racial discrimination (customary rule); ban on torture - see Prosecutor v. Furundzija (ICTY, 1998); general rules of self-determination.- Most norms of humanitarian law (esp. war crimes and crimes against humanity). See Zoran Kupreskic et al..

1) Limitations for Jus Cogens as Envisaged in the Vienna ConventionThe provisions of the Vienna Convention on jus cogens can be invoked only by States that are parties to both the VC and to a treaty that alleged as contrary to these peremptory norms.

2) Remedies to the Limited Applicability of the VC provisions on jus cogensAfter the adoption of the VC, some customary rules regarding the invalidity of treaties have evolved to the effect that any State concerned (i.e. directly affected by a treaty that is contrary to jus cogens), whether or not a party to the VC, may invoke the invalidity of the treaty if such treaty is contrary to jus cogens or the rules prohibiting coercion of a State or of a State representative.

What can also be observed is the emergence of a customary rule on the existence of peremptory law. The prevailing view, shared by the majority of States, is that certain rules are peremptory in nature (i.e. possess special legal force in that it renders null norms that are contrary to it) and because of its wide acceptance this customary rule on jus cogens also applies to normative acts by other international subjects (insurgents’ agreements) and to legal standards other than those laid down in the treaties (e.g. SC resolutions). This customary rule operates against states that are not party to the VC.

How did this rule evolve in such a short period of time? 1969 showed broad consent on jus cogens as expressed in the Convention, but also based on the comments made during the Conference. Many national courts have brought attention to peremptory norms. International arbitral courts implicitly upheld the notion of jus cogens.

Note:The customary rule on jus cogens does not, however, embody reference to the compulsory jurisdiction in the case of dispute, so a State, not party to the VC, while it can invoke the invalidity of a treaty as contrary to jus cogens, may not have much of a recourse against the other State if the latter refuses to submit the case to judicial determination. The contestant State will have to fall back on traditional mechanisms of settling disputes.

Legal Effects of Jus Cogens:- treaties and customary rules that are contrary to jus cogens are invalid ab initio - possibly, a court will declare null and void only the provisions of the treaty that are contrary to jus cogens, but uphold the validity of all other provisions (if such are not tainted by illegality); VC, Art. 44.5 does not provide for this effect, and may even be construed as excluding it. If Art. 44.5 is to be construed literally, as nullify the entire treaty, such consequence will affect only States that are party to the VC, but the possibility remains that as to non-parties to the VC the customary rule of jus cogens may have the effect to void only those treaty provisions that are contrary to peremptory norms- With respect to construction: in case of doubt, international norms should be construed so as to be consistent with peremptory norms - Jus cogens is binding on UN SC, as well as ICTY and their resolutions or judgments respectively shall be construed as to be consistent with jus cogens; and if that is impossible, i.e. if they are bluntly contradictory, they shall be viewed as invalid- see example regarding the reconciliation of SC Res. 1497 which provided for the exclusive jurisdiction of the State of the criminal who falls under the “grave breaches” provisions of the Geneva Conventions (grave breaches of humanitarian law belong to jus cogens and are intransgressible as the

I.C.J. held in Threat or Use of Nuclear Weapons) and the Geneva Conventions which provided for universal jurisdiction. How can this inconsistency be solved? Strict interpretation of the SC Resolution so as to give the national state primary jurisdiction (a first shot), unless the State where the criminal was apprehended is not satisfied that the national state will pursue a genuine trial, in which cases it may decide to try it itself, or extradite it to a foreign country that has a nexus (a connection) to the crime- Deterrent effect. See Furundzija- Bearing on the recognition of States. See Arbitration Commission on Yugoslavia, Opinion 10: recognition is a discretionary act by each state, subject only to compliance with the imperative rules of international law. It follows that when such rules are violated (e.g. entity that meets the requirements for statehood emerges as a result of aggression), other States should withhold recognition.- A reservation that is contrary to jus cogens is inadmissible- Effect on extradition treaties: A State may not comply with its obligations under an extradition treaty if doing so may lead to a possible violation of jus cogens (i.e. if compliance with the extradition treaty will expose the person to the risk of facing torture, persecution on ethnic, religious or racial grounds).- State immunity from foreign jurisdiction – peremptory norms may remove such immunity- See Furnundzija - peremptory norms may produce legal effects at the municipal level, by rendering internationally invalid any national norms contrary to them.- According to some courts, the peremptory character of certain norms may be granting to State courts universal criminal jurisdiction over the alleged authors of those crimes. In other words, the alleged author of crimes could face prosecution in any country in the world (even a country that has no nexus to the crimes).

The limited reliance on Jus Cogens in International Dealings- these norms have been used only in dissenting opinions, orbiter dicta, State pronouncements, declarations of international bodies, by litigants.- Not yet invoked to invalidate a treaty provision- I.C.J. has avoided the term- States refrain to invoke such rules out of principle, because they are still inclined to act out of self-interest and will not invoke a rule unless they are affected

However, jus cogens rules do have a deterrent effect and can be said to shape State conduct. Still, in bilateral relations, jus cogens norms still remain a potentiality.

Jus Cogens at the National Level- jus cogens was used as the rationale for invalidating treaty provisions that were determined to be contrary to it. See Bufano (Swiss Supreme Court, 1982) – refused to comply with its obligations under the extradition treaty it had concluded with Argentina, stating that the provisions of the European Convention on Extradition and the ECHR (European Convention of Human Rights) apply to Argentina as general principles of international law and justify Switzerland’s refusal to extradite in the case at issue because the crimes may qualify as political crimes and also because the accused were likely to face torture, which was a peremptory norm of international law and as such required Switzerland from refraining to fulfill its treaty obligations.- In later decisions the Swiss Supreme Court relied on Bufano and relied on jus cogens, by explicitly stating the Art. 3 of the ECHR belonged to jus cogens. Notion of jus cogens was enshrined in Swiss Constitution in 1999.

- Persistent objector- The court in the Anglo Norwegian Fisheries case held that even if a customary law rule

existed (on a ten-mile rule relating to straight base-lines),- “…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has

always opposed any attempt to apply it to the Norwegian coast.”- On the other hand, in the Asylum case the court found that a state is not bound by a customary

law rule when the state refrained from becoming a party to a convention that was the first to introduce the rule that had crystallized into custom.

- “But even if it could be supposed that such a custom existed between certain Latin-American States only, it could not be invoked against Peru which, far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the

qualification of the offence in matters of diplomatic asylum.”- NB: It is arguable whether this can apply as a general rule because there are many reasons that

a state may refuse to sign a convention – for example, political, moral or economic reasons. We also know that the state has the option to enter into a treaty and reserve out of the objectionable treaty provision. One cannot always assume, unless the state has expressed itself on the matter, that a state refuses to sign a particular treaty because it refutes the legality of a particular provision within the treaty.

- In both these cases, the court did not set out the criteria to determine if a state is a persistent objector. It did, however, allude to certain criteria in the Anglo-Norwegian fisheries case jurisprudence. The jurisprudence of the case appears to support the idea that an existing customary law rule would not apply to a state if

- (1) it objected to any outside attempts to apply the rule to itself – (a) at the initial stages and (b) in a consistent manner, and

- (2) if other states did not object to her resistance (read more in the case summary available here).

- Commentators have stated, on the other hand, that for a state to become a persistent objector, the state must

- (1) object to the practice at the initial stages of the formation of customary law and continue to object in a sustained manner; or

- (2) adopt a contrary practice at the initial stages of the formation of customary law and continue to do so a sustained manner.

- The objection must be expressed – either verbally or as contrary practice. There is no rule that States have to take physical action to preserve their rights (see the commentary (15) to the ILA customary law study).

- The absurdity of a persistent objector continuing to benefit from its objector status is demonstrated in the following examples:

- (1) Consider also this possibility. A customary law rule is formed with regard to the 12-mile territorial limit within which the state’s citizens have the exclusive right to engage in fishing. If country B considers themselves as persistent objectors to this rule then it is not bound by this rule. Country B’s citizens, then in pursuance of the non-binding nature of the customary law rule on its country, ventures into country C’s territorial waters to fish. Country C can arrest these fishermen and prosecute them in accordance with its domestic laws. Country B does not have an actionable cause before an international court because country C’s action was to enforce a customary law right.

- (2) The other argument is that persistent objection cannot affect or look to absolve the state’s obligations of jus cogens norms. For example, a state cannot said to have a right or escape from the prohibition of torture simply because it had been a persistent objector. This would be consistent with the position in treaty law – states cannot make treaties or treaty reservations that conflict with jus cogens norms.

- But what about other fundamental norms that fall short of the jus cogens status – consider for example human rights obligations that do not form jus cogens norms. For example, in the hypothetical scenario that a state objected initially and persistently to the freedom of expression or religion, would the state, then, be excused if it violated people’s rights to freedom and religion? Or would we say that these people did not have the rights because the state chose the path of a persistent objector?

- (3) What if the rule that the persistent objector objected to was an obligation? Assume for example, the hunting of a certain endangered animal is prohibited under treaty and customary law. Assume that state B had consistently objected to this prohibition and continues to hunt that animal even after the prohibition becomes a customary law right. Does this mean that state B is now absolved from the prohibition and can continue to hunt regardless of the customary law ban?

- In view of the above, it maybe more prudent and practical to argue that a state can only be a persistent objector – and have the benefits of being a persistent objector – at the time of the formation of the customary law. This is also consistent with the fact that existing customary law binds new states and that they cannot withdraw from customary law after they attain statehood.

-- Subsequent objector- Suffice to say, the consequences of a subsequent objector – one who objects after the

formation of the customary law rule – is clear. The state that objects continues to be bound by the customary law. If it acts in contrary to the law, it violates the law. The state can be held responsible for the violation under international law.

- If a number of states agree to the deviation then these states could create another customary law rule, either as a local custom or, if a sufficient number of affected states participate, a general custom.

- For a subsequent objector to develop a new customary law rule an existing norm must be broken. A state wishing to change customary law must either (1) violate the law and hope other states would acquiesce to it (and if, and until such time the state would be in breach of a customary international law); or (2) without violating the existing law the state must (a) get a sufficient number of states to accept that a new customary law had developed before choosing to adopt its state practice accordingly or (2) use the existing framework and creative interpretations to bring the violation within the existing law. In time, this creative interpretation would allow for the formation of new law or it would be rejected by states preventing such formation.

Legality of the Use by a State of Nuclear Weapons in Armed ConflictAdvisory Opinion (Jurisprudence & Customary Law)

The initial request for an advisory opinion by the ICJ was presented by the World Health Organization (WHO) on 3 September 1993, but the ICJ did not render an opinion on this request because the WHO was ultra vires, or acting outside its legal capacity. Another request was presented by the United Nations General Assembly in December 1994 and accepted by the Court in January 1995. The ICJ handed down an advisory opinion on 8 July 1996 the Legality of the Threat or Use of Nuclear Weapons case. The decision provides one of the few authoritative judicial decisions concerning the legality under international law of the use or the threatened use of nuclear weapons.Overview:The General Assembly and World Health Organization requested advisory opinions from the International Court of Justice regarding the legality of nuclear weapons.

Issue:May the International Court of Justice give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request?

Rule:the ICJ may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the charter of the UN to make such a request.

Analysis: The Court also rejected arguments that it should refrain from rendering an advisory opinion on the basis that such a reply might negatively affect disarmament negotiations, and that the Court would be exceeding its authority and acting in a law-making capacity. The Court rejected the latter argument on the basis that it simply states the existing law and does not legislate, even if it sometimes must specify the scope and application of such law .

Outcome:

Yes. The International Court of Justice may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Only compelling reasons are justified for a refusal to grant such an advisory opinion. The Charter of the United Nations authorizes the General Assembly to make such a request; however, the Court lacks the jurisdiction to grant such an opinion to the World Health Organization.

Court's analysis of illegality of nuclear weaponsDeterrence and "threat"The court considered the matter of deterrence, which involves a threat to use nuclear weapons under certain circumstances on a potential enemy or an enemy. Was such a threat illegal? The court decided, with some judges dissenting, that, if a threatened retaliatory strike was consistent with military necessity and proportionality, it would not necessarily be illegal. (Judgement paragraphs 37–50)The legality of the possession of nuclear weaponsThe court then considered the legality of the possession, as opposed to actual use, of nuclear weapons. The Court looked at various treaties, including the UN Charter, and found no treaty language that specifically forbade the possession of nuclear weapons in a categorical way.The UN Charter was examined in paragraphs 37-50 (paragraph 37: "The Court will now address the question of the legality or illegality of recourse to nuclear weapons in the light of the provisions of the Charter relating to the threat or use of force"). Paragraph 39 mentions: "These provisions [i.e. those of the Charter] do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used for a legitimate purpose under the Charter."Treaties were examined in paragraphs 53-63 (paragraph 53: "The Court must therefore now examine whether there is any prohibition of recourse to nuclear weapons as such; it will first ascertain whether there is a conventional prescription to this effect"), as part of the law applicable in situations of armed conflict (paragraph 51, first sentence: "Having dealt with the Charter provisions relating to the threat or use of force, the Court will now turn to the law applicable in situations of armed conflict"). In particular, with respect to "the argument [that] has been advanced that nuclear weapons should be treated in the same way as poisoned weapons", the Court concluded that "it does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of the [...] provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol" (paragraphs 54 and 56)". It was also argued by some that the Hague Conventions concerning the use of bacteriological or chemical weapons would also apply to nuclear weapons, but the Court was unable to adopt this argument ("The Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction", paragraph 57 in fine).With respect to treaties that "deal [...] exclusively with acquisition, manufacture, possession, deployment and testing of nuclear weapons, without specifically addressing their threat or use," the Court notes that those treaties "certainly point to an increasing concern in the international community with these weapons; the Court concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves" (paragraph 62). Also, regarding regional treaties prohibiting resource, namely those of Tlatelolco (Latin America) and Rarotonga (South Pacific) the Court notes that while those "testify to a growing awareness of the need to liberate the community of States and the international public from the dangers resulting from the existence of nuclear weapons", "[i]t [i.e. the Court] does not, however, view these elements as amounting to a comprehensive and universal conventional prohibition on the use, or the threat of use, of those weapons as such." (paragraph 63).Customary international law also provided insufficient evidence that the possession of nuclear weapons had come to be universally regarded as illegal.Ultimately, the court was unable to find an opinio juris (that is, legal consensus) that nuclear weapons are illegal to possess. (paragraph 65) However, in practice, nuclear weapons have not been used in war since 1945 and there have been numerous UN resolutions condemning their use (however, such resolutions are not universally supported—most notably, the nuclear powers object to them).(paragraph 68-73) The ICJ did not find that these facts demonstrated a new and clear customary law absolutely forbidding nuclear weapons.However, there are many universal humanitarian laws applying to war. For instance, it is illegal for a combatant specifically to target civilians and certain types of weapons that cause indiscriminate damage are categorically outlawed. All states seem to observe these rules, making them a part of customary international law, so the court ruled that these laws would also apply to the use of nuclear

weapons.(paragraph 86) The Court decided not to pronounce on the matter of whether the use of nuclear weapons might possibly be legal, if exercised as a last resort in extreme circumstances (such as if the very existence of the state was in jeopardy).(paragraph 97)DecisionThe court undertook seven separate votes, all of which were passed. ▪ The court decided to comply with the request for an advisory opinion; ▪ The court replied that "There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons"; ▪ The court replied that "There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such"; ▪ The court replied that "A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful"; ▪ The court replied that "A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons"▪ The court replied that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake" The court replied that "There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control". The Court reached this conclusion after a thorough examination both of the relevant frameworks of international law and of the interplay between them. Its threshold decision that the laws of war would determine nuclear weapons use left it with essentially two questions to answer:(1) Could the decision to use nuclear weapons be legal under jus ad bellum?(2) Could the use of nuclear weapons ever comply with jus in bello?The Court’s determination that nuclear weapons might, under exceptional circumstances, meet the demands of both doctrines compelled its refusal to find the use of nuclear weapons categorically unlawful.Turning to the first question, jus ad bellum determines the legality of decisions to use force, and its precepts serve as a foundation of the United Nations Charter. The Charter creates a presumption against the legality of decisions to use force by demanding that States “refrain in their international relations from the threat or use of force.” The Charter also, however, creates exceptions to this rule, explicitly permitting any decision to use force authorized by the United Nations Security Council, and noting that the Charter does not “impair the inherent right of individual or collective self-defense if an armed attack occurs” against a State. Thus, any decision to use force pursuant to Security Council authorization or to defend against an armed attack is presumptively legal, whereas any other use of force is presumptively illegal.Applying this doctrine to determine the legality of nuclear weapons use, the Court sets aside the question of the Security Council authorization (the Security Council, in theory, may authorize the use of any sort of force it deems necessary to maintain or restore peace and security) and instead focuses on the legality of a nuclear strike launched in self-defense. Although uses of force in self-defense are presumptively legal, the Court notes that attacks carried out in self-defense must conform to the requirements of necessity and proportionality to qualify as legal.Though the Court recognizes fully the impossibility of containing the destructive power of nuclear weapons “in either space or time,” and notes that such weapons “have the potential to destroy all civilization and the entire ecosystem of the planet, it refuses to find that any possible authorization of a defensive nuclear strike would violate the principle of proportionality.  A nuclear strike launched to defend against a nuclear strike, or against a sufficiently potent bombardment with conventional weapons, would qualify as proportional and thus satisfy the demands of jus ad bellum.  (This corresponds to the “extreme circumstance of self-defence” language in the Court’s ultimate holding quoted above.)The Court then looks to whether jus in bello—or international humanitarian law, which governs the conduct of warfare—would ever permit the use of a nuclear weapon. The Court focuses its inquiry on three principles of IHL: the prohibition against unnecessary suffering, the command that weapons

distinguish between combatants and civilians, and the requirement that attacks be proportional. The Court states that, given their tremendous destructive power, “the use of nuclear weapons in fact seems scarcely reconcilable with respect” for the requirements against unnecessary suffering and the requirement of distinction. However, noting the lack of a discrete factual scenario before it, the Court went on to find that it could not  “conclude with certainty that the use of nuclear weapons would necessary be at variance with the principles and rules of law applicable in armed conflict in any circumstance.” The Court more carefully scrutinizes the principle of proportionality, articulated in IHL as a prohibition against attacks “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” The italicized clause directs a State to weigh the expected damage to civilians and civilian objects not against a fixed counterweight but against the military advantage of the attack. More concretely, a State whose very survival hinged on a nuclear attack against the civilian-filled city of an opponent would weigh the expected loss of civilian life not against any objective standard, but against the military advantage it anticipates—in this case, survival. Given this feature of IHL, the Court found that it could not construe IHL to categorically prohibit the use of nuclear weapons. (This corresponds to the “in which the very survival of a State would be at stake” language in the Court’s ultimate holding quoted above.)

Anglo-Norwegian Fisheries Case ( UK v. Norway) (Law of Sea & Customary Notes)

The Fisheries Case (United Kingdom v. Norway) was the culmination of a dispute, originating in 1933, over how large an area of water surrounding Norway was Norwegian waters (that Norway thus had exclusive fishing rights to) and how much was 'high seas' (that the UK could thus fish).In1949, the UK requested that the International Court of Justice determine how far Norway's territorial claim extended to sea, and to award the UK damages in compensation for Norwegian interference with UK fishing vessels in the disputed waters, claiming that Norway's claim to such an extent of waters was against international law.The ICJ decided that Norway's claims to the waters were not inconsistent with international laws concerning the ownership of local sea-space.The United Kingdom requested the court to decide if Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that customary international law did not allow the length of a baseline drawn across abay to be longer than ten miles. Norway argued that its delimitation method was consistent with general principles of international law.

The judgment was rendered in favor of Norway on the 18th December 1951. By 10 votes to 2 the court held that the method employed in the delimitation of the fisheries zone by the Royal Norwegian decree is not contrary to international law. By 8 votes to 4 votes the court also held that the base lines fixed by this decree in application are not contrary to international law. However there are separate opinions and dissenting opinions from the judges in the court.Judge Hackworth declared that he concurred with the operative part of the judgment because he considered that the Norwegian government had proved the existence of historic title of the disputed areas of water.Judge Alvarez from Chile relied on the evolving principles of the law of nations applicable to the law of the sea. States have the right to modify the extent of the of their territorial sea Any state directly concerned may object to another state's decision as to the extent of its territorial sea International status of bays and straits must be determined by the coastal state directly concerned with due regard to the general interest and Historic rights and concept of prescription in international law.Formation of customary lawThe court consistently referred to positive (1) state practice and (2) lack of objections of other states on that practice as a confirmation of an existing rule of customary international law (see p. 17 and 18). There was no mention of opinio juris in this early judgment.In the following passage, the court considered that expressed state dissent regarding a particular practice was detrimental to the existence of an alleged general rule. It did not elaborate whether these states adopted a contrary practice because it was claiming an exception to the rule (see the Nicaragua

jurisprudence) or because it believed that the said rule did not possess the character of customary law.“In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired the authority of a general rule of international law.”Persistent objector ruleThe court in its judgment held that even if a customary law rule existed on the ten-mile rule,“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”In this case, the court appears to support the idea that an existing customary law rule would not apply to a state if it objected to any outside attempts to apply the rule to itself, at the initial stages and in a consistent manner, and if other states did not object to her resistance. In this manner, the Anglo Norwegian fisheries case joined the asylum case (Peru vs Colombia) in articulating what we now call the persistent objector rule.Initial objectionIn the present case, the court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear to me to have acquired the force of international law. Still less would it appear to have any foundation in reality…”The court held that “Language of this kind can only be construed as the considered expression of a legal conception regarded by the Norwegian Government as compatible with international law”. The court held that Norway had refused to accept the rule as regards to it by 1870.Sustained objectionThe court also went on to hold that Norway followed the principles of delimitation that it considers a part of its system in a consistent and uninterrupted manner from 1869 until the time of the dispute. In establishing consistent practice, the court held that “…too much importance need not be attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered in Norwegian practice.”No objectionAfter the court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind Norway because of its objections, the court inquired whether the Norwegian system of delimitation, itself, was contrary to international law. To do so, the court referred to state practice once more.“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of more than sixty years the United Kingdom Government itself in no way contested it… The Court notes that in respect of a situation which could only be strengthened with the passage of time, the United Kingdom Government refrained from formulating reservations.”Contrary practiceIn this case, Norway adopted a contrary practice – a practice that was the subject of litigation.However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice was not contrary to international law) but rather it claimed that its practice was in conformity with international law (see page 21). “In its (Norway’s) view, these rules of international law take into account the diversity of facts and, therefore, concede that the drawing of base-lines must be adapted to the special conditions obtaining in different regions. In its view, the system of delimitation applied in 1935, a system characterized by the use of straight lines, does not therefore infringe the general law; it is an adaptation rendered necessary by local conditions. ” ConclusionThe court held that the fact that this consistent and sufficiently long practice took place without any objection to the practice from other states (until the time of dispute) indicated that states did not consider the Norwegian system to be “contrary to international law”.“The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s enforcement of her system against the United Kingdom. The Court is thus led to conclude that the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a consistent and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law.”Relationship between international and national law

The court alluded to the relationship between national and international law in delimitation of maritime boundaries. In delimitation cases, states “must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements…” The court would also consider “…certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage.” However, while the act of delimitation can be undertaken by the State, its legal validity depends on international law.“The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law. (p. 20)”

Island of Palmas Case (United States v. The Netherlands)

Procedural History:Arbitration of territorial dispute.

Palmas (Miangas) is an island of little economic value or strategic location. It is two miles in length, three-quarters of a mile in width, and had a population of about 750 in 1932, when the case was decided. Palmas lies between Mindanao, the southernmost part of the Philippines, and the Nanusa Islands, the northernmost part of Indonesia other than Palmas.In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas lay within the boundaries of that cession to the U.S. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. On 23 January 1925, the two governments signed an agreement to that effect. Ratifications were exchanged in Washington on 1 April 1925. The agreement was registered in League of Nations Treaty Series on 19 May 1925.[1] The arbitrator in the case was Max Huber, a Swiss lawyer.The question before the arbitrator was whether the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands.The legal issue presented was whether a territory belongs to the first discoverer, even if they do not exercise authority over the territory, or whether it belongs to the state which actually exercises sovereignty over it.

Overview:-The United States (P) claimed that the Island of Palmas was part of the Philippines but the Netherlands (D) claimed title as well. -The United States (P) claimed the Island of Palmas was part of the Philippines and had been ceded by Spain by the Treaty of Paris in 1898. -The United States (P), as successor to the rights of Spain over the Philippines, based its claim of title in the first place on discovery. The Netherlands (D) claimed that it had possessed and exercised rights of sovereignty over the island from 1677 or earlier to the present.

Issue:Can an inchoate title prevail over a definite title founded on continuous and peaceful display of sovereignty?

Rule:-An inchoate title cannot prevail over a definite title found on continuous and peaceful display of sovereignty.

Analysis: The arbitrator examined evidence of contracts made by the East India Company and the Netherlands (D). The Netherlands (D) also based its claims on conventions it had with the princes and native chieftains of the islands. Spain was found not to have had dominion over the island at the time of the Treaty of Paris in 1898.Outcome:-An inchoate title cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The continuous and peaceful display of territorial sovereignty is as good as title. Discovery alone, without any subsequent act, cannot suffice to prove sovereignty over the island. There

is no positive rule of international law that islands situated outside territorial waters should belong to a state whose territory forms the nearest continent  or large island. No one contested the exercise of territorial rights by the Netherlands (D) from 1700 to 1906. The title of discovery, at best an inchoate title, does not prevail over the Netherlands, (D) claim of sovereignty.

DETAILED ANALYSES

Right by discovery In the first of its two arguments, the United States argued that it held the island because it had received actual title through legitimate treaties from the original "discoverer" of the island, Spain. The United States argued that Spain acquired title to Palmas when Spain discovered the island and the island was terra nullius. Spain's title to the island, because it was a part of the Philippines, was then ceded to the United States in the Treaty of Paris (1898) after Spain's defeat in the Spanish-American War. The arbitrator noted that no new international law invalidated the legal transfer of territory via cession.However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of Paris could not grant Palmas to the United States if Spain had no actual title to it. The arbitrator concluded that Spain held an inchoate title when Spain “discovered” Palmas. However, for a sovereign to maintain its initial title via discovery, the arbitrator said that the discoverer had to actually exercise authority, even if it were as simple an act as planting a flag on the beach. In this case, Spain did not exercise authority over the island after making an initial claim after discovery and so the American claim was based on relatively weak grounds.The dispute was regarding the sovereignty over the island of Palmas.This island was handed over to the US by the treaty of peace by Span. Their argument was that Spain ceded Philippines to the United States. However, Netherlands believed that it was part of their territory in the east Indies.

ContiguityThe United States also argued that Palmas was American territory because the island was closer to the Philippines than to the Netherlands East Indies. The arbitrator said there was no positive international law which favored the United States approach of terra firma, where the nearest continent or island of considerable size gives title to the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land noted that if the international community followed the proposed American approach, it would lead to arbitrary results.

Continuous and peaceful display of sovereigntyThe Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The arbitrator noted that the United States had failed to show documentation proving Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, then there would have been conflicts between the two countries but none are provided in the evidence.

ConclusionUnder the Palmas decision, three important rules for resolving island territorial disputes were decided:▪ Firstly, title based on contiguity (the state of bordering) has no standing in international law.▪ Secondly, title by discovery is only an inchoate title.Finally, if another sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery.

The Case of the S.S. Lotus (France v. Turke y ) (Jurisdiction and Customary Law)

A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were Turkish nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over the French national under international law? A French ship (the S.S. Lotus), collided with a Turkish ship in international waters, killing some Turkish sailors. The French ship then docked in Turkey. Turkey attempted to try the French officer in charge of the Lotus for negligence. They found him guilty and sentenced him to 80 days in jail.France went to the Permanent Court of International Justice (P.C.I.J.) and argued that Turkey did not have jurisdiction to try the French officers, because they were on a French boat in international waters at the time of the accident.Turkey argued that since their nationals were killed, they had jurisdiction to try those responsible for the deaths.France argued that as a matter of customary international law, the flag of the vessel (in this case France) has exclusive jurisdiction.The PCIJ found that Turkey did have the right to try the French sailors.The PCIJ basically found that since the two ships were involved in the same accident, that both countries had concurrent jurisdiction over the accident.The PCIJ found that customary international law gave France jurisdiction, but it didn't give them exclusive jurisdiction.This case led to the Lotus Principle (aka the Lotus Approach), which says that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition. "Under international law, everything that isn't prohibited is permitted."

The Lotus Principle was later overruled by the 1958 High Seas Convention.Article 11(1) says that only the flag State or the State of which the alleged offender was a national has jurisdiction over sailors regarding incidents occurring in high seas.

Questions before the Court: Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?The Court’s Decision:Turkey, by instituting criminal proceedings against Demons, did not violate international law.Relevant Findings of the Court:Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule of international law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough?The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is what we called the first Lotus Principle.The second principle of the Lotus case: Within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law.This applied to civil and criminal cases.France alleged that the flag State of a vessel would have exclusive jurisdiction over offences committed on board the ship in high seas. The PCIJ disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel carrying the flag of another State (paras 71 – 84). The Court held that Turkey and France both have jurisdiction in respect of the whole incident: i.e. there is concurrent jurisdiction.The PCIJ held that a ship in the high seas is assimilated to the territory of the flag State. This State may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory. In this case, the PCIJ held that the “… offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners.” Turkey had jurisdiction over this case.The Lotus Case was also significant in that the PCIJ said that a State would have territorial jurisdiction, even if the crime was committed outside its territory, so long as a constitutive element of the crime was committed in that State. Today, we call this subjective territorial jurisdiction. In order for subjective territorial jurisdiction to be established, one must prove that the element of the crime and the actual

crime are entirely inseparable; i.e., if the constituent element was absent – the crime would not have happened.“The offence for which Lieutenant Demons appears to have been prosecuted was an act – of negligence or imprudence – having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent… It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.”Customary International LawThe Lotus case gives an important dictum on creating customary international law. France alleged that jurisdictional questions on collision cases are rarely heard in criminal cases because States tend to prosecute only before the flag State. France argued that this absence of prosecutions points to a positive rule in customary law on collisions.The Court held that this “…would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is true.”  In other words, opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular way.

Military and Paramilitary Activities in Nicaragua Case(Use of Force & Customary Law)

ICJ case where Nicaragua brought suit against US for funding of Contras in Nicaragua.Was contra conduct attributable to the United States?Standard applied? Article 11 of ILC Draft ArticlesThe ICJ found that there was not enough direction or control from the US to the contras to make the acts of the contras attributable to the USFor there to be enough direction, the US would have had to have effective control of the military or paramilitary operations in the course of which the alleged violations were committedHowever, the US violate international law on other grounds: its support of the contras was a use of force against NicaraguaUS was held responsible for its own conduct, but not for the conduct of the contras.

Facts of the Case:In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) .  The new government – installed by FSLN – began to meet armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. The US – initially supportive of the new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador.  In April 1981 it terminated United States aid to Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities directed against Nicaragua”.The armed opposition to the new Government was conducted mainly by (1)   Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see map of the region). Initial US support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. Later, the United States officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary operations in Nicaragua”).Nicaragua also alleged that the United States is effectively in control of the contras, the United States devised their strategy and directed their tactics and that they were paid for and directly controlled by United States personal. Nicaragua also alleged that some attacks were carried out by United States military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan territory to

gather intelligence, supply to the contras in the field and to intimidate the population.The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter by “providing, upon request, proportionate and appropriate assistance…” to Costa Rica, Honduras and El Salvador in response to Nicaragua’s alleged acts aggression against those countries (paras. 126, 128). 

Questions before the Court:

1. Did the United States breach its customary international law obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua?2. Did the United States breach its customary international law obligation – not to use force against another State – when it directly attacked Nicaragua in 1983 – 1984 and when its activities in bullet point 1 above resulted in the use of force?3. If so, can the military and paramilitary activities that the United States undertook in and against Nicaragua be justified as collective self-defence?4. Did the United States breach its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above?5. Did the United States breach its customary international law obligations – not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce – when it laid mines in the internal waters and the territorial sea of Nicaragua?ICJ decision: The United States violated customary international law in relation to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on collective self-defence to justify its use of force against Nicaragua.The court held that the United States breached its customary international law obligation – not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces resulted in the threat or use of force  The Court held that:The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law.In a controversial finding the court sub-classified the use of force as: (1) the “most grave forms of the use of force” (i.e. those that constitute an armed attack) and (2) the “less grave form” (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or use of force not amounting to an armed attack).The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil installations and a naval base (see below). The United States could justify its action on collective self-defence, if certain criteria were met – this aspect is discussed below.The United States violated the customary international law prohibition on the use of force when it assisted the contras by “organizing or encouraging the organization of irregular forces and armed bands… for incursion into the territory of another state” and participated “in acts of civil strife…in another State”  when these acts involved the threat or use of force.The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the timing of the offensives against it was determined by the United States: i.e. an offensive could not be launched until the requisite funds were available. The Court held that “…it does not follow that each provision of funds by the United States was made to set in motion a particular offensive, and that that offensive was planned by the United States.” The Court held further that  while the arming and training of the contras involved  the threat or use of force against Nicaragua, the supply of funds, in it self, only amounted to an  act of intervention in the internal affairs of Nicaragua (para 227) – this aspect is discussed below.What is an armed attack?(1) A controversial but interesting aspect of the Court’s judgement was its definition of an armed attack. The Court held that an armed attack included:(2) action by regular armed forces across an international border; and

(3) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the State’s) substantial involvement therein”(4) Mere frontier incidents are not considered as an armed attack – unless because of its scale and effects it would have been classified as an armed attack if it was carried out by regular forces.(5) Assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed attack – it can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other States.-> In the Palestine wall case, the ICJ upheld the definition of  “armed attack” proposed in the Nicaragua case.

2. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence.

▪ Customary international law allows for exceptions to the prohibition on the use of force – including the right to individual or collective self-defence (for a difference between the two forms of self defence, click here). The United States, at an earlier stage of the proceedings, had asserted that the Charter itself acknowledges the existence of this customary international law right when it talks of the “inherent” right of a State under Article 51 of the Charter (para.193).▪ When a State claims that it used force in collective self-defence, the Court would look into two aspects:(1) whether the circumstances required for the exercise of self-defence existed and(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of international law (i.e. did it comply with the principles of necessity and proportionality).▪ Several criteria must be met for a State to exercise the right of individual or collective self-defence:(1) A State must have been the victim of an armed attack;(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took place or not is done by the state who was subjected to the attack. A third State cannot exercise a right of collective self-defence based its (the third State’s) own assessment]; and(3) In the case of collective self-defence – the victim State must request for assistance (“there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack”).(4) The State does not, under customary international law, have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack happened – but “the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence”The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries – which in turn would necessitate self-defence (paras 230  - 236). The Court referred to statements made by El Salvador, Costa Rica, Honduras and the United States before the Security Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the United States in self-defence – at the time when the United States was allegedly acting in collective self-defence; and (2) the United States did not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. The Court concluded that the United States cannot justify its use of force as collective self-defence.The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence – was also not fulfilled. 3. The Court held that the United States breached its CIL obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua. ▪ The principle of non- intervention means that every State has a right to conduct its affairs without outside interference – i.e it “…forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States.” . This is a corollary of the principle of sovereign equality of States.A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful

when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205).▪ Nicaragua stated that the activities of the United States were aimed to overthrow the government of Nicaragua and to substantially damage the economy and weaken the political system to coerce the Government of Nicaragua to accept various political demands of the United States. The Court held: “…first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the intention of  the contras themselves was to overthrow the present Government of Nicaragua… The Court considers that in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far reaching.”▪ The financial support, training, supply of weapons, intelligence and logistic support given by the United States to the contras was a breach of the principle of non-interference. “…no such general right of intervention, in support of an opposition within another State, exists in contemporary international law”, even if such a request for assistance is made by an opposition group of that State (see para 246 for more).▪ However, in a controversial finding, the Court held that the United States did not devise the strategy, direct the tactics of the contras or exercise control on them in manner so as to make their acts committed in violation of international law imputable to the United States (see in this respect “Determining US responsibility for contra operations under international law” 81 AMJIL 86).T he Court concluded that “a number of military and paramilitary operations of the contras were decided and planned, if not actually by United States advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer, particularly the supply aircraft provided to the contras by the United States” but not all contra operations reflected strategy and tactics wholly devised by the United States.“In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the initial years of United States assistance the contra force was so dependent. However, whether the United States Government at any stage devised the strategy and directed the tactics of the contras depends on the extent to which the United States made use of the potential for control inherent in that dependence. The Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United States…The Court has taken the view (paragraph 110 above) that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary.”▪ Interesting, however, the Court also held that providing “…humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law” (para 242).▪  In the event one State intervenes in the affairs of another State, the victim State has a right to intervene in a manner that is short of an armed attack (210).“While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have

justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force.”4. The United States breached its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.▪ The  ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of the United States and acting under its supervision with its logistical support.  The United States did not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates.▪ The court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan territory and  certain low-altitude flights, complained of as causing sonic booms.The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal waters, its territorial sea and the air space above its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States.In the Nicaragua case, the ICJ discussed:▪ The competence of the ICJ to give its determination based on customary international law in the face

of the Vandenberg reservation of the United States.▪ The relationship between treaty law and customary international law.▪ Elements of customary international law.▪ The prohibition on the use of force as a jus cogens norm.▪ Customary international law status of the principle of non-intervention.

The competence of the ICJ to give its determination based on customary international law1. The United States when accepting the compulsory jurisdiction of the ICJ (under Article 36(2) of the ICJ Statute) entered into the Vandenberg reservation. This reservation barred the ICJ from using certain multilateral treaties in the adjudication of the dispute.2. The United States held that this reservation barred the Court from determining the case even on the basis of customary and general principles of international law because customary law provisions, on which Nicaragua relied on, were identical to provisions in treaties sought to be excluded. Because of the identical content, the United States argued, treaty provisions supervene and subsume the parallel customary law provision (see below).3. The Court disagreed. It held that multilateral treaty reservations could not preclude the Court from determining cases relying customary international law because the latter exists independently of treaty law.Relationship between treaty law and customary international law4. As we noted before, the United States argued that when customary international law and treaty law contain the same content; the treaty law subsumes and supervenes customary international law. In other words, “the existence of principles in the United Nations Charter precludes the possibility that similar rules might exist independently in customary international law, either because existing customary rules had been incorporated into the Charter, or because the Charter influenced the later adoption of customary rules with a corresponding content” (para 174).5. In its response, the Court distinguished two situations:(a)    Situations where the customary law principles were identical to treaty provisions; and(b)    Situations where customary law and treaty law rights and obligations differed in respect of the same subject matter.6. In situations where customary law principles were identical to treaty provisions (reflected as (a) above), the Court, quite correctly, disagreed with the view of the United States. It held that even if principles of customary international law are codified into treaties, the former continues to exist side by side with the latter. For treaty parties, both customary and treaty law apply and if, for some reason, the treaty ceases to apply the identical customary law provision continues to apply between them unaffected.7. The fact that customary international law exists alongside treaty law was an argument brought by Norway and Denmark in the North Sea Continental Shelf Cases. In these cases, the two countries having failed to attribute an obligation under Article 6 of the Geneva Conventions of 1958 to Germany, sought to bind Germany via customary international law. In this case the Court determined that Article 6 neither reflected customary law at the time of the codification, nor had it attained that status at the

time of the determination. In the Nicaragua case, the Court relied on the North Sea Continental Shelf Cases to support the assertion that principles of customary international law can exist side by side with identical treaty law provisions and the latter does not supervene the former in a manner where the former ceases to exist.The Court discussed situations where customary international law and treaty law provisions were not identical (see point (b) above). For example, the Court referred to the fact that concepts such and necessity and proportionality, or the definition of what constitutes an armed attack, are not found under Article 51, or the UN Charter, but in customary law. The Court concluded that (1) this proves that customary international law continues to exist alongside treaty law and that (2) areas governed by the two sources of law do not (always) overlap and the rules do not (always) have the same content.In case of a divergence between treaty law and customary international law, for the parties to the treaty, amongst themselves, the treaty provisions apply as lex specialis. The court’s support for this principle can be found in paras 180 and 181. The Court, in conclusion, explained the relationship between the UN Charter and customary international law in the following manner:“However, so far from having constituted a marked departure from a customary international law which still exists unmodified, the Charter gave expression in this field (on the use of force and self defence) to principles already present in customary international law, and that law has in the subsequent four decades developed under the influence of the Charter, to such an extent that a number of rules contained in the Charter have acquired a status independent of it. The essential consideration is that both the Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations. The differences which may exist between the specific content of each are not, in the Court’s view, such as to cause a judgment confined to the field of customary international law to be ineffective or inappropriate (to the parties of the Charter who are bound by the Charter)…

The relationship between customary international law and jus cogens13. The court cited material presented by Nicaragua, the United States and the International Law Commission to argue that the prohibition on the use of force contained in Article 2(4) of the UN Charter has attained the status of a jus cogens norm.  The Court found this to be “A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations…” (para 190).

The necessary elements to determine the existence of customary international law14. The Court, similar to the North Sea Continental Shelf Case, considered both the subjective element (opinio juris) and the objective element (State practice) as essential pre-requisites to the formation and elucidation of a customary international law norm (para 207). The jurisprudence of the Nicaragua case contained an important clarification – inconsistent State practice does not affect the formation or continued existence of a customary principle so long as the inconsistency is justified as a breach of the rule.“It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs.  The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule.   In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.  If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. (para 186)”  15. The Nicaragua jurisprudence explained how one could deduct opinio juris from acts of State.  The Court held that opinio juris could be deduced from:-   the attitude of States towards certain General Assembly resolutions. For example, the “Declaration on Principles of International Law concerning Friendly Relations…” (hereafter called the Declaration on Friendly Relations). The Court held that:“The effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves…It would therefore seem apparent that the attitude referred to expresses an opinio juris

respecting such rule (or set of rules), to be thenceforth treated separately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter” -   Statements by State representatives.-   Obligations undertaken by participating States in international forums (the Court provided the example of the Conference on Security and Co-operation in Europe, Helsinki)-   The International Law Commission’s findings that a concept amounts to a customary law principle.-   Multilateral conventions.NB: The fact that the Court relied on resolutions of the United Nations to deduct opinio juris was subject to criticism. As you know, opinio juris is the subjective element necessary to form customary law. Opinio juris is reflected in instances where the State undertakes a particular practice because it believes that it is legally bound to do so. Voting patterns in the United Nations are often guided by policy considerations over legal merits. The General Assembly’s subject matter is more policy oriented than legal (for which we have the 6th Committee). For example, when the United States voted for the Friendly Relations Declaration it stated on record its belief that the Declaration was “only a statement of political intention and not an expression of the law.”  This is not to say that provisions on General Assembly Resolutions that guide  the international community to act in a certain way may not eventually become binding international law (either by attaining customary law status or becoming codified into treaty law). It can, if there is adequate State practice and opinio juris. The argument is that opinio juris cannot be said to exist based merely on a vote in favour of a non-binding resolution – in the absence of an examination of subsequent consistent and general State practice (which, in turn, reflects or confirms opinio juris).  Customary international law relating to principles of non-intervention16. The Court held that “Principles such as those of the non-use of force (para 191), non-intervention (para 192), respect for the independence and territorial integrity of States, right of collective self defence (para 193) and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated (text in brackets added).”17.  The Court’s finding that principle of non-intervention formed a part of customary international law invited criticism from commentators, partly because they disagreed that the principle formed customary international law and partly because of the Court’s own contradictions in coming to its conclusions and inadequacy of analysis (see below). The Court’s contradiction stems from this statement: ” The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference; though examples of trespass against this principle are not infrequent, the Court considers that it is part and parcel of customary international law…”(emphasis added. Para 202).18.  The Court began its analysis with two questions: “Notwithstanding the multiplicity of declarations by States accepting the principle of non-intervention, there remain two questions: first, what is the exact content of the principle so accepted, and secondly, is the practice sufficiently in conformity with it for this to be a rule of customary international law?” The first question was discussed in a previous post and will not be discussed here.18. Although the question seemed to direct the Court towards identifying an existing custom, in its response the Court seemed to have already determined that the customary law prohibition of non-intervention existed. In the following passage the Court deliberates if, in contrast, a customary law right to intervention had evolved.“There have been in recent years a number of instances of foreign intervention for the benefit of forces opposed to the government of another State. The Court is not here concerned with the process of decolonisation… It has to consider whether there might be indications of a practice illustrative of belief in a kind of general right for States to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified. For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention.” (paras 206, 207). 19. The Court went on to hold, as before, that for a new customary rule to be formed, not only must the acts concerned “amount to a settled practice”, but they must be accompanied by the opinio juris sive necessitates”.“The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non-intervention lies in the nature of the ground offered as justification. Reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law. In fact however the Court finds that States have not justified their conduct by reference to a new right of intervention or a new exception to the

principle of its prohibition. The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law.”20.  The Court also noted that the United States has not sought to justify its intervention in Nicaragua on legal grounds, but had only justified it at a political level.  The United States had not asserted for itself  legal right of intervention in these circumstances. The Court, without further analysis into State practice, almost immediately proceeded to find that “…no such general right of intervention, in support of an opposition within another State, exists in contemporary international law. The Court concludes that acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations (para 209).”

Development of a parallel customary international law?In addition to the comments made above in italics, another interesting aspect of the judgment is that it sought to divorce customary international law obligation from the identical treaty obligation because of the jurisdictional bar to consider multilateral treaties. In its consideration of customary international law it developed certain principles independently of the treaty. For example, Article 2(4) of the UN Charter prohibits the threat or use of force against another State. The Court held that the same prohibition on the use of force could be found under customary international law and as a jus cogens norm. The Court then went on to categorize the use of force under customary law as either a “grave use of force” (i.e. use of force amounting to an armed attack) or a “less grave use of force” (i.e. use of force that falls short of an armed attack – for example, the threat to use force). The Court, then, restricted the right of self-defense to a situation where there had been a grave use of force (or an armed attack, as defined by the Court). If one were to hold that the relevant Charter principles were clear, precise and unambiguous, one could say this divorced interpretation could result in customary law developing in a manner that is not in line with the Charter and thereby creating separate rights/ regimes of law that govern the same subject matter. This is because, then, the two regimes would be irreconcilable. However, the fact remains that the Charter does leave room for interpretation – for example, on the definition of an armed attack or on the use of force. In cases of ambiguity, Article 31 of the Vienna Convention on the Law of Treaties directs us to look at, inter alia, subsequent practice and any relevant rules of international law that maybe applicable. In other words, a treaty can be interpreted with the assistance of customary and general principles of international law. In this case, the development of customary law would also mean a potential development of ambiguous treaty law – and a reconciliation of treaty and customary law provisions.

North Sea Continental Shelf Case(Federal Republic Of Germany

vDenmark and v Netherlands) ( Customary law & law of sea )

Germany's North Sea coast is concave, while the Netherlands' and Denmark's coasts are convex. If the delimitation had been determined by the equidistance rule ("drawing a line each point of which is equally distant from each shore"), Germany would have received a smaller portion of the resource-rich shelf relative to the two other states. Thus Germany argued that the length of the coastlines be used to determine the delimitation. Germany wanted the ICJ to apportion the Continental Shelf to the proportion of the size of the state's adjacent land and not by the rule of equidistance.The Court ultimately urged the parties to "abat[e] the effects of an incidental special feature [Germany's concave coast] from which an unjustifiable difference of treatment could result." In subsequent negotiations, the states granted to Germany most of the additional shelf it sought. The cases are viewed as an example of "equity praeter legem"—that is, equity "beyond the law"—when a judge supplements the law with equitable rules necessary to decide the case at hand.

Facts West Germany, the Netherlands and Denmark wanted to determine where the maritime borders of their countries were. West Germany wanted to use the just and equitable idea and the Netherlands and Denmark wanted to use the equidistance/special circumstances principals in the 1958 Geneva Convention on the Continental Shelf. Applying the equidistance principle would cut off ocean access to West Germany while greatly increasing the area under Danish and Dutch control.

The case involved the delimitation of the continental shelf areas in the North Sea between Germany and Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these States.

The parties requested the ICJ to decide the principles and rules of international law that are applicable to the above delimitation.

The parties disagreed on the applicable principles or rules of delimitation – Netherlands and Denmark relied on the principle of equidistance (the method of determining the boundaries in such a way that every point in the boundary is equidistant from the nearest points of the baselines from which the breath of the territorial sea of each State is measured). Germany sought to get a decision in favour of the notion that the delimitation of the relevant continental shelf is governed by the principle that each coastal state is entitled to a just and equitable share (hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a rule of customary international law that was not binding on Germany. The court was not asked to delimit – the parties agreed to delimit the continental shelf as between their countries, by agreement, after the determination of the ICJ on the applicable principles.

Issue What principles and rules of international law are applicable to the delimitation of the continental shelf in the North Sea between the parties?

Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in Article 6 of the Geneva Convention, either as a customary international law rule or on the basis of the Geneva Convention?

Decision Equidistance principle is not customary law, and thus the parties must come to an equitable settlement of the appropriate boundaries.The use of the equidistance method had not crystallised into customary law and was is not obligatory for the delimitation of the areas in the North Sea related to the present proceedings.Reasons The majority spent a significant amount of the decision considering what constitutes a customary rule of law. They considered three ways the equidistance rule could be customary law:▪ the rule predated the Convention and was simply codified;▪ the Convention crystallized equidistance as a rule of customary law; or▪ the rule became custom in light of subsequent state practice.They also identify three elements necessary for an element to constitute a customary rule of law:▪ the provision must be of a norm-creating character such that it could be regarded as forming the

basis of a general rule of law;▪ the provision must be a settled practice based on the acts of state actors; and▪ the provision must be such, or be carried out in such a way, as to be evidence of a subjective belief

that this practice is rendered obligatory by the existence of a rule of law requiring it, i.e. opinio juris.

Applying this reasoning to the facts, both Denmark and the Netherlands had admitted at the hearing that the law in this area had not yet settled at the time of the Convention, but they both felt the law had crystallized when the Convention came into force. Article 6 of the Convention stated that equidistance was the secondary method to be used in delimitation, which seemed to contradict the idea of it as a general rule of law, plus there was a facility for making reservations to Article 6, making it difficult to conclude it was now crystallized by the Convention.On subsequent state practice, the majority found fifteen examples where equidistance was used, more than half between states subject to the Convention. They stressed strongly, however, that even were there far more examples of the use of equidistance, the subjective belief that the states were doing so out of obligation must be present.Finding then that equidistance was not a rule of customary law, the majority ruled that equitable principles must be utilized in negotiations between the parties to delineate the boundaries.Ratio

Customary rules of law are difficult to establish; there must be a settled practice among states carried out such that the actors have a subjective belief that there is an obligation to carry out such a practice.

DETAILED ANALYSES

Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on Germany?1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties have agreed on a method for delimitation or unless special circumstances exist, the equidistance method would apply (see Article 6). Germany has signed but not ratified the Geneva Convention, while Netherlands and Denmark are parties to the Convention. The latter two States argue that while Germany is not a party to the Convention (not having ratified it), she is still bound by Article 6 of the Convention because:“…(1)  by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it as being generally applicable to the delimitation of continental shelf areas…(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter is called the principle of estoppel).2. The Court rejected the first argument. It stated that only a ‘very definite very consistent course of conduct on the part of a State’ would allow the court to presume that a State had somehow become bound by a treaty (by a means other than in a formal manner: i.e. ratification) when the State was ‘at all times fully able and entitled to…’ accept the treaty commitments in a formal manner. The Court held that Germany had not unilaterally assumed obligations under the Convention. The court also took notice of the fact that even if Germany ratified the treaty, she had the option of entering into a reservation on Article 6 following which that particular article would no longer be applicable to Germany (i.e. even if one were to assume that Germany had intended to become a party to the Convention, it does not presuppose that it would have also undertaken those obligations contained in Article 6).3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980, discusses more fully the obligations of third States to treaties. It clearly stipulates that an obligation arises for a third State from a provision of a treaty only if (1) the parties to the treaty intend the provision to create this obligation for the third States; and (2) the third State expressly accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ deliberated on this case. However, as  seen above, the ICJ’s position was consistent the VCLT. (See the relevant provisions of the Vienna Convention on the Law of Treaties).4. The court held that the existence of a situation of estoppel would have allowed Article 6 to become binding on Germany – but held that Germany’s action did not support an argument for estoppel. The court also held that the mere fact that Germany may not have specifically objected to the equidistance principle as contained in Article 6 is not sufficient to state that the principle is now binding upon it.5. In conclusion, the court held that Germany had not acted in any way to incur obligations contained in Article 6 of the Geneva Convention. The equidistance – special circumstances rule was not binding on Germany by way of treaty.Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the Geneva Convention by way of customary international law?6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international law on the subject of continental shelf delimitation’ and existed independently of the Convention. Therefore, they argued, Germany is bound by it by way of customary international law.7. To decide if the equidistance principle bound Germany by way of customary international law, the court examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being drawn up (2) and after the latter came into force.What was the customary law status of Article 6 at the time of drafting the Convention?8. The court held the principle of equidistance, as contained in Article 6, did not form a part of existing or emerging customary international law at the time of drafting the Convention. The Court supported this finding based on (1) the hesitation expressed by the drafters of the Convention – International Law Commission – on the inclusion of Article 6 (para. 62) and (2) the fact reservations to Article 6 was permissible under the Convention (Article 12). The court held:… Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12) reservations may be made by any State on signing, ratifying or acceding for, speaking

generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted; whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favor…. The normal inference would therefore be that any articles that do not figure among those excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of law (see para 65 for a counter argument and the court’s careful differentiation)…”Did the provisions in Article 6 on the equidistance principle attain the customary law status after the Convention came into force?9. The court then examined whether the rule contained in Article 6 had become customary international law after the Convention entered into force – either due the convention itself (i.e., if enough States had ratified the Convention in a manner to fulfil the criteria specified below), or because of subsequent State practice (i.e. even if adequate number of States had not ratified the Convention one could find sufficient State practice to meet the criteria below). The court held that Article 6 of the Convention had not attained a customary law status (compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 in the field of international humanitarian law in terms of its authority as a pronouncement of customary international law).10. For a customary rule to emerge the court held that it needed: (1) very widespread and representative participation in the convention, including States whose interests were specially affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was unnecessary (i.e. duration) for the formation of a customary law.Widespread and representative participation11. The court held that the first criteria was not met. The number of ratifications and accessions to the convention (39 States) were not adequately representative (including of coastal States – i.e. those States whose rights are affected) or widespread.Duration12. The court held that duration taken for the customary law rule to emerge is not as important as widespread and representative participation, uniform usage and the existence of an opinio juris.“Although the passage of only a short period of time (in this case, 3 – 5 years) is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved (text in brackets added).”Opinio juris13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular way. (For more on opinio juris click here).14. The Court examined 15 cases where States had delimited their boundaries using the equidistance method, after the Convention came into force (paras. 75 -77). The court concluded, even if there were some State practice in favour of the equidistance principle the court could not deduct the necessary opinio juris from this State practice. The North Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the subjective element) are essential pre-requisites for the formation of a customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The following explains the concept of opinio juris and the difference between customs (i.e. habits) and customary law:Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.

15.  The court concluded that the equidistance principle was not binding on Germany by way of treaty or customary international law because, in the case of the latter, the principle had not attained a customary international law status at the time of the entry into force of the Geneva Convention or thereafter. As such, the court held that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings.

Velasquez Rodriguez Case,Inter-American Court of Human Rights,

July 29, 1988 (case summary)

In the Velasquez Rodriguez Case, a case in which the Inter-American Court of Human Rights held the government of Honduras responsible for the disappearance of three persons and ordered it to pay compensation to the victims' survivors. AS the Inter-American Court on Human Rights of the Organization of American States made clear in the Velasquez Rodriguez Case, under international law every violation of an international obligation that results in harm creates a duty to make adequate reparation.IACHR's seminal forced disappearance case, Caso Velásquez Rodríguez, which arose out of events in Honduras. In Velásquez Rodríguez, the Inter-American Commission on Human Rights presented evidence to the IACHR on behalf of the applicant (the victim's father), suggesting the Honduran government conducted, or at least tolerated, a pattern or practice of forced disappearance. Such evidence included testimony from victims of arbitrary detentions during the relevant period, interviews with family members whose relatives were disappeared, and general country reports produced by independent, non-governmental organizations. From this evidence, the IACHR concluded a pattern or practice of forced disappearance existed in Honduras.After concluding a pattern or practice existed and was "supported or tolerated" by the government, the IACHR stated that if the applicant could link the disappearance of a particular individual to that practice, then the "disappearance of [a] particular individual [could] be proved through circumstantial or indirect evidence or by logical inference." The value of the IACHR's holding is significant because it lowers the burden of proof for an individual to establish that a forced disappearance occurred. This lowering of the evidentiary burden increases the likelihood of success on the merits.The Requisite Burden of Proof for a Violation of the Right to LifeBased on the IACHR's finding of a pattern or practice presumption, as indicated above, the evidentiary burden to establish a violation of the right to life is less than proof beyond a reasonable doubt, though the IACHR has not articulated a particular standard for this lesser burden. Most forced disappearance cases, however, arise in the context of a pattern or practice.In Velásquez Rodríguez, the IACHR addressed the burden of proof required in forced disappearance cases where a pattern or practice was established. The discussion focused on the fact that in cases of forced disappearances, the government involved likely would "attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim." The government's concealment or destruction of direct evidence, namely a body, renders it virtually impossible to prove a violation of the right to life. Thus, recognizing that direct evidence would almost always be unavailable to establish a violation of the right to life, the IACHR permitted a finding of violation of the right to life based exclusively on circumstantial evidence, or even logical inference.In Velásquez Rodríguez, the IACHR relied on circumstantial evidence, including hearsay testimony by the victim's sister, who testified that eyewitnesses saw Manfredo Velásquez kidnapped by men in civilian clothes in broad daylight. The IACHR acknowledged that when the Honduran government carried out or tolerated forced disappearances, the police customarily use this form of kidnapping. Consequently, the Court presumed Velásquez disappeared at the "hands of or with the acquiescence of those officials with the framework of that practice." Moreover, the fact that the government failed to investigate or make any inquiry into his disappearance, and thwarted attempts by the victim's family to do so, strongly suggested the government's involvement in the disappearance, even if there was no direct evidence indicating the government kidnapped Velásquez. Finally, because Velásquez had not been seen for over seven years, the IACHR reasonably concluded that Velásquez could be presumed dead. Although the IACHR did not name the evidentiary burden for establishing a violation of the right to life, proof beyond a reasonable doubt was not required as indicated by the IACHR's use of circumstantial or indirect evidence, as well as logical inferences, to hold Honduras in violation of the victim's right to life.The Right to be Free from Torture, Inhuman, or Degrading TreatmentThe reasoning the IACHR employed in Velásquez Rodríguez on the issue of the evidentiary burden required to prove a violation of the right to life in forced disappearance cases is directly applicable to claims of torture or cruel, inhuman, or degrading treatment under Article 5 of the American

Convention. An applicant can establish the victim suffered torture based on "circumstantial or indirect evidence or even by logical inference."

The ECHR's employment of proof beyond a reasonable doubt to establish a claim of torture raises numerous concerns in light of the objectives of international human rights law, especially the applicability of such law in the context of forced disappearances. There are two concerns that warrant attention. First, in forced disappearance cases, as stated by the IACHR in Velásquez Rodríguez, the government likely will attempt to conceal or destroy the pertinent evidence. Consequently, any direct evidence of the victim's fate will be sparse, thus rendering it virtually impossible to prove beyond a reasonable doubt that the authorities tortured the victim.Second, as the IACHR emphasized in Velásquez Rodríguez, "international protection of human rights should not be confused with criminal justice." An international human rights proceeding is civil rather than criminal in nature. The objective of international human rights law, as noted by Velásquez Rodríguez, is not "to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for reparation of damages resulting from the acts of the States responsible." These objectives are identical to those in any civil proceeding. Therefore, the evidentiary burden required in most civil claims-proof by a preponderance of the evidence-should be utilized in human rights courts.As stated by the IACHR in Velásquez Rodríguez, "States do not appear before the Court as defendants in a criminal action." The goal of the adjudication is to compensate the aggrieved party and not to punish the individual, thereby eliminating the need to use the evidentiary burden of proof beyond a reasonable doubt.

The Asylum Case(Customary Law)

The Colombian Ambassador in Lima, Perú allowed Torre, head of the American People's Revolutionary Alliance sanctuary after his faction lost a one-day civil war in Peru on 3 October 1948. The Colombian government granted him asylum, but the Peruvian government refused to grant him safe passage out of Peru.Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and refused to grant safe passage.The Court rejected both submissions of Colombia. It was not found that the custom of Asylum was uniformly or continuously executed sufficiently to demonstrate that the custom was of a generally applicable character.Questions before the Court:(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana Convention) when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

Relevant Findings of the Court:(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?1. The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence to make a provisional qualification of the offence (for example, as a political offence) and the territorial State has the right to give consent to this qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of international law or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive qualification of the State that grants asylum under the Havana Convention or relevant principles of international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of ratifications the provisions of the latter Convention cannot be said to reflect customary international law (p. 15).3. Colombia also argued that regional or local customs support the qualification. The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation:“The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Columbia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law(text in brackets added).”4. The court held that Columbia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State practice did not allow for the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). The court also reiterated that the fact that a particular State practice was followed because of political expediency and not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):“[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or … that it was, apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.”5. The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on Peru, because Peru “far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence [as “political” in nature] in matters of diplomatic asylum.” (See in this regard, the lesson on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held ‘in any event the . . . rule would appear to be inapplicable as against Norway in as much as she had always opposed any attempt to apply it to the Norwegian coast’.)6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru.(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?7. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State (Columbia) to send the person granted asylum outside its national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct.8. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have requested and been granted safe passage for asylum seekers, before the territorial State could request for his departure. Once more, the court held that these practices were a result of a need for expediency and other practice considerations over an existence of a belief that the act amounts to a legal obligation (see paragraph 4 above).“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct without awaiting a request from the territorial state for the departure of the refugee…but this practice does not and cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued maintenance of asylum a violation of the treaty?9. Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum… to persons accused or condemned for common crimes… (such persons) shall be surrendered upon request of the local government.”10. In other words, the person-seeking asylum must not be accused of a common crime (for example, murder would constitute a common crime, while a political offence would not).The accusations that are relevant are those made before the granting of asylum. Torre’s accusation related to a military rebellion, which the court concluded was not a common crime and as such the granting of asylum complied with Article 1 of the Convention.11. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions: First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.”12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of “an imminent or persistence of a danger for the person of the refugee”. The court held that the facts of the case, including the 3 months that passed between the rebellion and the time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The court held:“In principle, it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country… In principle, asylum cannot be opposed to the operation of justice.”13. In other words, Torre was accused of a crime but he could not be tried in a court because Colombia granted him asylum. The court held that “protection from the operation of regular legal proceedings” was not justified under diplomatic asylum.14. The court held:“In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.” 15. As a result, exceptions to this rule are strictly regulated under international law.Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and disorderly action of irresponsible sections of the population.” (for example during a mob attack where the territorial State is unable to protect the offender). Torre was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima.17. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of the Havana Convention.

Pinochet Case (Immunity)

A former head of state only has immunity with regard to his acts as a head of state but not with regard to acts, which fall outside his role as head of state. A head of state may be treated as the state itself and entitled to the same immunities.A former head of state cannot have immunity for acts of murder committed outside his own territory. International law recognizes crimes against humanity and the Torture Convention says that no circumstances can be invoked as justification for torture. Therefore it cannot be a part of the function of a head of state under international law to commit those crimes. There is general agreement between the parties as to the rules of statutory immunity and the rationale which underlies them.

The issue is whether international law grants state immunity in relation to the international crime of torture and, if so, whether the Republic of Chile is entitled to claim such immunity even though Chile, Spain and the United Kingdom are all parties to the Torture Convention and therefore “contractually” bound to give effect to its provisions from 8 December 1988 at the latest.

CURRENT HEAD OF STATEIt is a basic principle of international law that one sovereign state (the forum state) does not adjudicate

on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of the head of state persists to the present day: the head of state is entitled to the same immunity as the state itself. The diplomatic representative of the foreign state in the forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae.FORMER HEAD OF STATEWhat then when the ambassador leaves his post or the head of state is deposed? The position of the ambassador is covered by the Vienna Convention on Diplomatic Relations (1961). After providing for immunity from arrest (article 29) and from criminal and civil jurisdiction (article 31), article 39(1) provides that the ambassador’s privileges shall be enjoyed from the moment he takes up post; and paragraph (2) provides:“When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.”The continuing partial immunity of the ambassador after leaving post is of a different kind from that enjoyed ratione personae while he was in post. Since he is no longer the representative of the foreign state he merits no particular privileges or immunities as a person. However in order to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador’s time. Accordingly under article 39(2) the ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official. This limited immunity, ratione materiae, is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities whether public or private.In my judgment at common law a former head of state enjoys similar immunities, ratione materiae, once he ceases to be head of state. He too loses immunity ratione personae on ceasing to be head of state. The ex-head of state he cannot be sued in respect of acts performed whilst head of state in his public capacity. Thus, at common law, the position of the former ambassador and the former head of state appears to be much the same: both enjoy immunity for acts done in performance of their respective functions whilst in office.The question then which has to be answered is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an act committed by Senator Pinochet as part of his official functions as head of state. It is not enough to say that it cannot be part of the functions of the head of state to commit a crime. Actions, which are criminal under the local law can, still have been done officially and therefore give rise to immunity ratione materiae. The case needs to be analysed more closely.Can it be said that the commission of a crime, which is an international crime against humanity and jus cogens, is an act done in an official capacity on behalf of the state? I believe there to be strong ground for saying that the implementation of torture as defined by the Torture Convention cannot be a state function. “While generally international law … does not directly involve obligations on individuals personally, that is not always appropriate, particularly for acts of such seriousness that they constitute not merely international wrongs (in the broad sense of a civil wrong) but rather international crimes which offend against the public order of the international community. States are artificial legal persons: they can only act through the institutions and agencies of the state, which means, ultimately, through its officials and other individuals acting on behalf of the state. For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal state and not to the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice. The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law. Problems in this area – such as the non-existence of any standing international tribunal to have jurisdiction over such crimes, and the lack of agreement as to what acts are internationally criminal for this purpose – have not affected the general acceptance of the principle of individual responsibility for international criminal conduct.”

Later he said, at p. 84: “It can no longer be doubted that as a matter of general customary international law a head of state will personally be liable to be called to account if there is sufficient evidence that he authorised or perpetrated such serious international crimes.”It can be objected that Sir Arthur was looking at those cases where the international community has established an international tribunal in relation to which the regulating document expressly makes the head of state subject to the tribunal’s jurisdiction: see, for example, the Nuremberg Charter, article 7; the Statute of the International Criminal Tribunal for Former Yugoslavia; the Statute of the International Criminal Tribunal for Rwanda and the Statute of the International Criminal Court. It is true that in these cases it is expressly said that the head of state or former head of state is subject to the court’s jurisdiction. But those are cases in which a new court with no existing jurisdiction is being established. The jurisdiction being established by the Torture Convention and the Hostages Convention is one where existing domestic courts of all the countries are being authorised and required to take jurisdiction internationally. The question is whether, in this new type of jurisdiction, the only possible view is that those made subject to the jurisdiction of each of the state courts of the world in relation to torture are not entitled to claim immunity.I have doubts whether, before the coming into force of the Torture Convention, the existence of the international crime of torture as jus cogens was enough to justify the conclusion that the organisation of state torture could not rank for immunity purposes as performance of an official function. At that stage there was no international tribunal to punish torture and no general jurisdiction to permit or require its punishment in domestic courts. Not until there was some form of universal jurisdiction for the punishment of the crime of torture could it really be talked about as a fully constituted international crime. But in my judgment [*205] the Torture Convention did provide what was missing: a worldwide universal jurisdiction. Further, it required all member states to ban and outlaw torture: article 2. How can it be for international law purposes an official function to do something which international law itself prohibits and criminalises? Thirdly, an essential feature of the international crime of torture is that it must be committed “by or with the acquiesence of a public official or other person acting in an official capacity.” As a result all defendants in torture cases will be state officials. Yet, if the former head of state has immunity, the man most responsible will escape liability while his inferiors (the chiefs of police, junior army officers) who carried out his orders will be liable. I find it impossible to accept that this was the intention.Finally, and to my mind decisively, if the implementation of a torture regime is a public function giving rise to immunity ratione materiae, this produces bizarre results. Immunity ratione materiae applies not only to ex-heads of state and ex-ambassadors but to all state officials who have been involved in carrying out the functions of the state. Such immunity is necessary in order to prevent state immunity being circumvented by prosecuting or suing the official who, for example, actually carried out the torture when a claim against the head of state would be precluded by the doctrine of immunity. If that applied to the present case, and if the implementation of the torture regime is to be treated as official business sufficient to found an immunity for the former head of state, it must also be official business sufficient to justify immunity for his inferiors who actually did the torturing. Under the Convention the international crime of torture can only be committed by an official or someone in an official capacity. They would all be entitled to immunity. It would follow that there can be no case outside Chile in which a successful prosecution for torture can be brought unless the State of Chile is prepared to waive its right to its officials’ immunity. Therefore the whole elaborate structure of universal jurisdiction over torture committed by officials is rendered abortive and one of the main objectives of the Torture Convention – to provide a system under which there is no safe haven for torturers – will have been frustrated. In my judgment all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention.For these reasons in my judgment if, as alleged, Senator Pinochet organised and authorised torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law, Chile had agreed to outlaw such conduct and Chile had agreed with the other parties to the Torture Convention that all signatory states should have jurisdiction to try official torture (as defined in the Convention) even if such torture were committed in Chile.As to the charges of murder and conspiracy to murder, no one has advanced any reason why the ordinary rules of immunity should not apply and Senator Pinochet is entitled to such immunity.For these reasons, I would allow the appeal so as to permit the extradition proceedings to proceed on the allegation that torture in pursuance of a conspiracy to commit torture, including the single act of torture which is alleged in charge 30, was being committed by Senator Pinochet after 8 December 1988 when he lost his immunity.

1. What are the main tenets of the feminist critique of international law? Outline some of the various feminist critiques presented by Chinkin and Charlesworth. Do you think PIL ignores the views of women?

The feminist critique of international law is build on two main notions, the innate ignorance of women during the law making process in the international legal system and on the inherent tendency of the law to incline towards the male gender. Chinkin and Charlesworth believe that this has thus resulted in "a narrow and inadequate jurisprudence". They emphasized on four critiques of international law, which is leading to “male dominance of women”. Firstly, they pointed the “absence of women in international legal institutions”. The lack of representation of women as head of States or in international institutions like the UN clearly emphasizes this notion. Secondly, they emphasized on how “women were excluded by the international documents” by the continued usage of the generic male pronoun. Liberal feminist are against this typed of sexed laws. They assert equality between men and women. They believe that only bad law is the problem, not the law as a whole. They believe that there is an inherent flaw of bias in the methodology, when men produce it by observing other men. Men wrote most the international literature. Thirdly, they highlight how “certain ‘neutral’ principles and rules of International law are seen to operate differently with respect to women and men.” In the 21st century, inhuman crimes such as slavery, racial discrimination etc are considered as jus cogens, however, the international law does not consider trafficking women, prostitution etc as a peremptory norm. Fourthly, they reveal how certain “basic concepts of international law reveals a sexed and gendered nature”. When the law talks about the State protecting the people, the State over here would be referring to men protecting the weaker people i.e. the women. The Cultural Feminists (another school of feminism) describes this voice as the “different voice”. This school of feminism stresses, on how this “different voice” is not equally respected and valued if it is considered a woman’s voice. The authors also comment on the concept of essentialism. They believe that this would pose as a liability for restructuring political and social life as it stereotypes the characteristics or the “essence” of women.

Yes, I believe that public international law ignores the views of women. It is clearly seen from the above discussion of the feminist critique that the international law ignores women in the process of law making and is inherently biased towards men. Though International law essentially deals with the various States, these laws are framed by the subjects, to govern the various aspects relating to the States, which they are part of. Therefore, the individuals of the states are the indirect parties of international laws. Thus, it requires the adequate representation of everyone’s interest, which even includes the ignored women.

2. What triggered the emergence of TWAIL? Did TWAIL II identify the lacunae of TWAIL I correctly? If you were a TWAIL scholar, how would you amend TWAIL I?

TWAIL was mainly the product of two attributes. The first being the inclination to defy the notion, proclaimed by the western scholars, of international law being a product of European Christian civilization and the second was the need to revive, revitalize and restructure the international law, so as to reciprocate to the needs of the third world people, which would also include the Indians. The restructuring aimed at addressing the third worlds interest in an international system and thereby incorporating these interests while formulating new international policies or laws. These factors coupled with the works of various scholars such as C.H. Alexandrowicz, R.P. Anand among others, triggered the emergence of TWAIL.

TWAIL II did identify most of the lacunae of TWAIL I. TWAIL failed to grasp the true concept of imperialism. Due to the over simplification of the concept of imperialism, by associating it with colonisation, they failed to oversee the colonialist or the neo-colonialist approaches adopted, practiced and continued by these global capitalists. TWAIL I presupposed the international law to be neutral. They expected the International law to accept and transform according to their commands. TWAIL I further failed to appreciate the indeterminacy involved in the structure of International law, an hence failed in addressing the class, gender and ethnic divides. TWAIL I was ineffective in establishing the international institutions as the proper forum for address the needs of the states. TWAIL I eluded itself

from inter disciplinary inquires. Even though TWAIL I claimed to envision an egalitarian and just international law, it was still ignorant of the concerns of the people from the third world.

If I were a TWAIL scholar, I would first try to identify the advantages of my country and tap into that resource. By optimally exploiting this resource, I would try to find a voice for my country in the international community and later use this power to amend the international laws to address my country’s internal problems such as malnourishment, poverty, security etc before addressing it in the international system. The simple defiance to the European laws or claims will not get us anywhere.

3. What are the sources of international law? Are municipal legal systems obliged to recognize these sources while exercising a) domestic jurisdiction, b) extraterritorial jurisdiction? Elucidate with case laws and examples.

Over the years, the sources of international law have been divided into primary and secondary sources. Both sources find their origins in Article 38(1) of the Statute of the International Court of Justice, which is held to be the most authoritative and complete statement as to the sources of International Law. The international conventions, customs and general principles of law are considered the primary source, which is part of the law creating processes. The secondary sources, which are considered the law determining agencies comprise of judicial decisions and academic writings. Besides these sources, the international law also recognises jus cogens or peremptory norms, which are, accepted principles of international law. Generally, no one is permitted to digress from these norms. Examples of jus cogens would be slavery,

1) Custom A general practice, which is accepted and followed as a law, would be a custom. Thus, there 2 elements which comprise a custom are the material fact i.e. the actual behaviour of states and the opinion juris i.e. the psychological or subjective belief that such behaviour is law. According to the International Court of Justice, to be a material fact of a custom, the customary rule had to be a constant and uniform usage practiced by the state. The Anglo-Norwegian Fisheries case, established a custom to be recognized as a law if some degree of uniformity amongst state practices could be established. However, in Nicaragua v. United States, the court differed from its stand of “uniform state practice” as prescribed in the Anglo-Norwegian Fisheries case, and held that there need not be absolute rigorous conformity to the “uniform state practice”.

With respect to the subjective belief of a custom, the Court of International Justice in the Lotus case held that a state practice would constitute customary law if it had the essential ingredient of obligation, i.e. if it casts an obligation on the party involved. Alternatively it would be a mere practice and a customary law.

2) International Conventions

International conventions are legally binding written statements, which establish a relation between the states. The principles of agreements are binding or pacta sunt servanda obligates the parties involved to act according to the predetermined conditions and arrangements. Law making treaties and treaty contracts are the two types of International conventions. The former establishes new laws, rules and guidelines to be followed by all the members to the convention, where as the latter is between a limited number of parties and are not considered to be a law making instrument. They are more like a contract.

3) General Principles of Law

When there exists a lacuna in law, rules are construed by the judge by drawing an inference from the pre existing laws; these are called the General Principles of Law and are used to guide the legal system.

While exercising domestic jurisdiction, the municipal legal systems are obliged to take into account these sources of law. Earlier there used to be an assumption of independence within the domestic jurisdiction because of the sovereign nature of the states, however, after the Anglo-Norwegian Fisheries case, it has been held that the validity of a state’s action with respect to other states have to based on international law. This implies that the sources of the international law have to be considered for validating a state’s action while dealing with other states even within their domestic jurisdiction.

While exercising extra territorial jurisdiction, the municipal legal systems are obliged to take into account jus cogens i.e. when crimes of universal concern are committed, each state involved has the right to prosecute the crime, however, the validity of extraterritorial jurisdiction is derived from jus cogens. This rule can be inferred from the Pinochet case where universal jurisdiction was invoked for prosecuting the head of Chile for the torture committed by him. Never the less, there is an exception to this rule of universal jurisdiction and that is diplomatic immunity. In the Belgian Arrest Warrant case, the ICJ withdrew an arrest warrant issued against the foreign minister of Congo for inciting racial hatred. They were of the opinion that this arrest would prevent him from exercising his duties.